EFFECT AND APPLICATION OF LAWS c] General Orders Nos.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
ARTICLE 2 - EFFECTIVITY OF LAWS
1. EN BANC
1. G.R. No. L-63915 April 24, 1985
LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President ,
MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang Records Office, and
FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.
ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a right recognized in Section
6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and
enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners
seek a writ of mandamus to compel respondent public officials to publish, and/or cause the
publication in the Official Gazette of various presidential decrees, letters of instructions, general
orders, proclamations, executive orders, letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200,
234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368,
404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566,
573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923,
935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250,
1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840,
1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150,
153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213,
215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-
283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349,
357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473,
486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611,
612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940,
964,997,1149-1178,1180-1278.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529,
1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600,
1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-
1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795,
1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-
1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860,
1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-
1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-
507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563,
567-568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707,
712-786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-
81, 92, 94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed outright on the
ground that petitioners have no legal personality or standing to bring the instant petition. The view is
submitted that in the absence of any showing that petitioners are personally and directly affected or
prejudiced by the alleged non-publication of the presidential issuances in question 2 said petitioners
are without the requisite legal personality to institute this mandamus proceeding, they are not being
"aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or person
unlawfully neglects the performance of an act which the law specifically enjoins as
a duty resulting from an office, trust, or station, or unlawfully excludes another from
the use a rd enjoyment of a right or office to which such other is entitled, and there
is no other plain, speedy and adequate remedy in the ordinary course of law, the
person aggrieved thereby may file a verified petition in the proper court alleging the
facts with certainty and praying that judgment be rendered commanding the
defendant, immediately or at some other specified time, to do the act required to be
done to Protect the rights of the petitioner, and to pay the damages sustained by
the petitioner by reason of the wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right
and its object is to compel the performance of a public duty, they need not show any specific interest
for their petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to
1
a private individual only in those cases where he has some private or particular interest to be
subserved, or some particular right to be protected, independent of that which he holds with the public
at large," and "it is for the public officers exclusively to apply for the writ when public rights are to be
subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public
right and the object of the mandamus is to procure the enforcement of a public duty, the people are
regarded as the real party in interest and the relator at whose instigation the proceedings are
instituted need not show that he has any legal or special interest in the result, it being sufficient to
show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary
Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper
party to the mandamus proceedings brought to compel the Governor General to call a special
election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for
this Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the proposition
that the relator is a proper party to proceedings of this character when a public right
is sought to be enforced. If the general rule in America were otherwise, we think
that it would not be applicable to the case at bar for the reason 'that it is always
dangerous to apply a general rule to a particular case without keeping in mind the
reason for the rule, because, if under the particular circumstances the reason for
the rule does not exist, the rule itself is not applicable and reliance upon the rule
may well lead to error'
No reason exists in the case at bar for applying the general rule insisted upon by
counsel for the respondent. The circumstances which surround this case are
different from those in the United States, inasmuch as if the relator is not a proper
party to these proceedings no other person could be, as we have seen that it is not
the duty of the law officer of the Government to appear and represent the people in
cases of this character.
The reasons given by the Court in recognizing a private citizen's legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced
by petitioners herein is a public right recognized by no less than the fundamental law of the land. If
petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of any
other person to initiate the same, considering that the Solicitor General, the government officer
generally empowered to represent the people, has entered his appearance for respondents in this
case.
Respondents further contend that publication in the Official Gazette is not a sine qua non requirement
for the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus
submitted that since the presidential issuances in question contain special provisions as to the date
they are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The
point stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's construction of said article. In a
long line of decisions,4 this Court has ruled that publication in the Official Gazette is necessary in
those cases where the legislation itself does not provide for its effectivity date-for then the date of
publication is material for determining its date of effectivity, which is the fifteenth day following its
publication-but not when the law itself provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws
with the fact of publication. Considered in the light of other statutes applicable to the issue at hand,
the conclusion is easily reached that said Article 2 does not preclude the requirement of publication in
the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1] all important
legisiative acts and resolutions of a public nature of the, Congress of the
Philippines; [2] all executive and administrative orders and proclamations, except
such as have no general applicability; [3] decisions or abstracts of decisions of the
Supreme Court and the Court of Appeals as may be deemed by said courts of
sufficient importance to be so published; [4] such documents or classes of
documents as may be required so to be published by law; and [5] such documents
or classes of documents as the President of the Philippines shall determine from
time to time to have general applicability and legal effect, or which he may
authorize so to be published. ...
The clear object of the above-quoted provision is to give the general public adequate notice of the
various laws which are to regulate their actions and conduct as citizens. Without such notice and
publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It
would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law
of which he had no notice whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the publication of laws
taken so vital significance that at this time when the people have bestowed upon the President a
power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass
media of the debates and deliberations in the Batasan Pambansa—and for the diligent ones, ready
access to the legislative records—no such publicity accompanies the law-making process of the
President. Thus, without publication, the people have no means of knowing what presidential decrees
have actually been promulgated, much less a definite way of informing themselves of the specific
contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion
generica de leyes, se comprenden tambien los reglamentos, Reales decretos, Instrucciones,
Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno en uso de su
potestad.5
The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the
Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative
2
duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of
public concern is to be given substance and reality. The law itself makes a list of what should be
published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion
whatsoever as to what must be included or excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general applicability" is
mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for
their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall
within this category. Other presidential issuances which apply only to particular persons or class of
persons such as administrative and executive orders need not be published on the assumption that
they have been circularized to all concerned. 6
It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound by
law, he must first be officially and specifically informed of its contents. As Justice Claudio Teehankee
said in Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of instructions which all form
part of the law of the land, the requirement of due process and the Rule of Law
demand that the Official Gazette as the official government repository promulgate
and publish the texts of all such decrees, orders and instructions so that the people
may know where to obtain their official and specific contents.
The Court therefore declares that presidential issuances of general application, which have not been
published, shall have no force and effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in reliance of the validity of those
presidential decrees which were published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or
implemented prior to their publication. The answer is all too familiar. In similar situations in the past
this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District
vs. Baxter Bank 8 to wit:
The courts below have proceeded on the theory that the Act of Congress, having
been found to be unconstitutional, was not a law; that it was inoperative, conferring
no rights and imposing no duties, and hence affording no basis for the challenged
decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v.
Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements
as to the effect of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly be ignored. The
past cannot always be erased by a new judicial declaration. The effect of the
subsequent ruling as to invalidity may have to be considered in various aspects-
with respect to particular conduct, private and official. Questions of rights claimed to
have become vested, of status, of prior determinations deemed to have finality and
acted upon accordingly, of public policy in the light of the nature both of the statute
and of its previous application, demand examination. These questions are among
the most difficult of those which have engaged the attention of courts, state and
federal and it is manifest from numerous decisions that an all-inclusive statement of
a principle of absolute retroactive invalidity cannot be justified.
Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party
under the Moratorium Law, albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their publication in the
Official Gazette is "an operative fact which may have consequences which cannot be justly ignored.
The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of the presidential
decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos.
1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither the
subject matters nor the texts of these PDs can be ascertained since no copies thereof are available.
But whatever their subject matter may be, it is undisputed that none of these unpublished PDs has
ever been implemented or enforced by the government. In Pesigan vs. Angeles, 11 the Court, through
Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of the contents of
[penal] regulations and make the said penalties binding on the persons affected thereby. " The
cogency of this holding is apparently recognized by respondent officials considering the manifestation
in their comment that "the government, as a matter of policy, refrains from prosecuting violations of
criminal laws until the same shall have been published in the Official Gazette or in some other
publication, even though some criminal laws provide that they shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished
presidential issuances which are of general application, and unless so published, they shall have no
binding force and effect.
SO ORDERED.
Separate Opinions
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
3
executive act having the force and effect of law. My point is that such publication required need not be
confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It
conduces to certainty. That is too be admitted. It does not follow, however, that failure to do so would
in all cases and under all circumstances result in a statute, presidential decree or any other executive
act of the same category being bereft of any binding force and effect. To so hold would, for me, raise
a constitutional question. Such a pronouncement would lend itself to the interpretation that such a
legislative or presidential act is bereft of the attribute of effectivity unless published in the Official
Gazette. There is no such requirement in the Constitution as Justice Plana so aptly pointed out. It is
true that what is decided now applies only to past "presidential issuances". Nonetheless, this
clarification is, to my mind, needed to avoid any possible misconception as to what is required for any
statute or presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am
likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the
extent that it requires notice before laws become effective, for no person should be bound by a law
without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such
notice shall be by publication in the Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to
the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and
unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the
doctrine that it must be in the Official Gazette. To be sure once published therein there is the
ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose of
the question of what is the jural effect of past presidential decrees or executive acts not so published.
For prior thereto, it could be that parties aware of their existence could have conducted themselves in
accordance with their provisions. If no legal consequences could attach due to lack of publication in
the Official Gazette, then serious problems could arise. Previous transactions based on such
"Presidential Issuances" could be open to question. Matters deemed settled could still be inquired
into. I am not prepared to hold that such an effect is contemplated by our decision. Where such
presidential decree or executive act is made the basis of a criminal prosecution, then, of course, its ex
post facto character becomes evident. 5 In civil cases though, retroactivity as such is not conclusive
on the due process aspect. There must still be a showing of arbitrariness. Moreover, where the
challenged presidential decree or executive act was issued under the police power, the non-
impairment clause of the Constitution may not always be successfully invoked. There must still be
that process of balancing to determine whether or not it could in such a case be tainted by
infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional application.
That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication
is essential to the effectivity of a legislative or executive act of a general application. I am not in
agreement with the view that such publication must be in the Official Gazette. The Civil Code itself in
its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days following the
completion of their publication in the Official Gazette is subject to this exception, "unless it is
otherwise provided." Moreover, the Civil Code is itself only a legislative enactment, Republic Act No.
386. It does not and cannot have the juridical force of a constitutional command. A later legislative or
executive act which has the force and effect of law can legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette would be
devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier
noted, with undesirable consequences. I find myself therefore unable to yield assent to such a
pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
TEEHANKEE, J., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstances and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation,1 citing the settled principle based
on due process enunciated in earlier cases that "before the public is bound by its contents, especially
its penal provisions, a law, regulation or circular must first be published and the people officially and
specially informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3
of the Civil Code (based on constructive notice that the provisions of the law are ascertainable from
the public and official repository where they are duly published) that "Ignorance of the law excuses no
one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which
are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to a
law that has been duly published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall
take effect [only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading
that "most laws or decrees specify the date of their effectivity and for this reason, publication in the
Official Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil
Code's indispensable and essential requirement of prior publication in the Official Gazette by the
4
simple expedient of providing for immediate effectivity or an earlier effectivity date in the law
itself before the completion of 15 days following its publication which is the period generally fixed by
the Civil Code for its proper dissemination.
MELENCIO-HERRERA, J., concurring:
I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has
to be published. What I would like to state in connection with that proposition is that when a date of
effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its
publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the
date of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will
run counter to constitutional rights or shall destroy vested rights.
PLANA, J., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due
process requires notice of laws to affected parties before they can be bound thereby; but such notice
is not necessarily by publication in the Official Gazette. The due process clause is not that precise.
Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite for
their effectivity, if said laws already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things may
be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as to
when it will take effect. Secondly, it clearly recognizes that each law may provide not only a different
period for reckoning its effectivity date but also a different mode of notice. Thus, a law may prescribe
that it shall be published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide for
the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it authorizes
the publication of the Official Gazette, determines its frequency, provides for its sale and distribution,
and defines the authority of the Director of Printing in relation thereto. It also enumerates what shall
be published in the Official Gazette, among them, "important legislative acts and resolutions of a
public nature of the Congress of the Philippines" and "all executive and administrative orders and
proclamations, except such as have no general applicability." It is noteworthy that not all legislative
acts are required to be published in the Official Gazette but only "important" ones "of a public nature."
Moreover, the said law does not provide that publication in the Official Gazette is essential for the
effectivity of laws. This is as it should be, for all statutes are equal and stand on the same footing. A
law, especially an earlier one of general application such as Commonwealth Act No. 638, cannot
nullify or restrict the operation of a subsequent statute that has a provision of its own as to when and
how it will take effect. Only a higher law, which is the Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette.
Cuevas and Alampay, JJ., concur.
GUTIERREZ, Jr., J., concurring:
I concur insofar as publication is necessary but reserve my vote as to the necessity of such
publication being in the Official Gazette.
DE LA FUENTE, J., concurring:
I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.
Separate Opinions
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need not be
confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It
conduces to certainty. That is too be admitted. It does not follow, however, that failure to do so would
in all cases and under all circumstances result in a statute, presidential decree or any other executive
5
act of the same category being bereft of any binding force and effect. To so hold would, for me, raise
a constitutional question. Such a pronouncement would lend itself to the interpretation that such a
legislative or presidential act is bereft of the attribute of effectivity unless published in the Official
Gazette. There is no such requirement in the Constitution as Justice Plana so aptly pointed out. It is
true that what is decided now applies only to past "presidential issuances". Nonetheless, this
clarification is, to my mind, needed to avoid any possible misconception as to what is required for any
statute or presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am
likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the
extent that it requires notice before laws become effective, for no person should be bound by a law
without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such
notice shall be by publication in the Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to
the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and
unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the
doctrine that it must be in the Official Gazette. To be sure once published therein there is the
ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose of
the question of what is the jural effect of past presidential decrees or executive acts not so published.
For prior thereto, it could be that parties aware of their existence could have conducted themselves in
accordance with their provisions. If no legal consequences could attach due to lack of publication in
the Official Gazette, then serious problems could arise. Previous transactions based on such
"Presidential Issuances" could be open to question. Matters deemed settled could still be inquired
into. I am not prepared to hold that such an effect is contemplated by our decision. Where such
presidential decree or executive act is made the basis of a criminal prosecution, then, of course, its ex
post facto character becomes evident. 5 In civil cases though, retroactivity as such is not conclusive
on the due process aspect. There must still be a showing of arbitrariness. Moreover, where the
challenged presidential decree or executive act was issued under the police power, the non-
impairment clause of the Constitution may not always be successfully invoked. There must still be
that process of balancing to determine whether or not it could in such a case be tainted by
infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional application.
That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication
is essential to the effectivity of a legislative or executive act of a general application. I am not in
agreement with the view that such publication must be in the Official Gazette. The Civil Code itself in
its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days following the
completion of their publication in the Official Gazette is subject to this exception, "unless it is
otherwise provided." Moreover, the Civil Code is itself only a legislative enactment, Republic Act No.
386. It does not and cannot have the juridical force of a constitutional command. A later legislative or
executive act which has the force and effect of law can legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette would be
devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier
noted, with undesirable consequences. I find myself therefore unable to yield assent to such a
pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
TEEHANKEE, J., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstances and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation,1 citing the settled principle based
on due process enunciated in earlier cases that "before the public is bound by its contents, especially
its penal provisions, a law, regulation or circular must first be published and the people officially and
specially informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3
of the Civil Code (based on constructive notice that the provisions of the law are ascertainable from
the public and official repository where they are duly published) that "Ignorance of the law excuses no
one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which
are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to a
law that has been duly published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall
take effect [only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading
that "most laws or decrees specify the date of their effectivity and for this reason, publication in the
Official Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil
Code's indispensable and essential requirement of prior publication in the Official Gazette by the
6
simple expedient of providing for immediate effectivity or an earlier effectivity date in the law
itself before the completion of 15 days following its publication which is the period generally fixed by
the Civil Code for its proper dissemination.
MELENCIO-HERRERA, J., concurring:
nullify or restrict the operation of a subsequent statute that has a provision of its own as to when and
how it will take effect. Only a higher law, which is the Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette.

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has Cuevas and Alampay, JJ., concur.
to be published. What I would like to state in connection with that proposition is that when a date of
effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its
publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the
date of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will GUTIERREZ, Jr., J., concurring:
run counter to constitutional rights or shall destroy vested rights.
I concur insofar as publication is necessary but reserve my vote as to the necessity of such
publication being in the Official Gazette.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due
process requires notice of laws to affected parties before they can be bound thereby; but such notice
is not necessarily by publication in the Official Gazette. The due process clause is not that precise.
Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite for
their effectivity, if said laws already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things may
be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as to
when it will take effect. Secondly, it clearly recognizes that each law may provide not only a different
period for reckoning its effectivity date but also a different mode of notice. Thus, a law may prescribe
that it shall be published elsewhere than in the Official Gazette.
DE LA FUENTE, J., concurring:
I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.
Footnotes
1 Section 6. The right of the people to information on matters of public concern
shag be recognized, access to official records, and to documents and papers
pertaining to official acts, transactions, or decisions, shag be afforded the citizens
subject to such limitation as may be provided by law.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide for
the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it authorizes
the publication of the Official Gazette, determines its frequency, provides for its sale and distribution,
and defines the authority of the Director of Printing in relation thereto. It also enumerates what shall
be published in the Official Gazette, among them, "important legislative acts and resolutions of a
public nature of the Congress of the Philippines" and "all executive and administrative orders and
proclamations, except such as have no general applicability." It is noteworthy that not all legislative
acts are required to be published in the Official Gazette but only "important" ones "of a public nature."
Moreover, the said law does not provide that publication in the Official Gazette is essential for the
effectivity of laws. This is as it should be, for all statutes are equal and stand on the same footing. A
law, especially an earlier one of general application such as Commonwealth Act No. 638, cannot

7

2. G.R. No. L-63915 December 29, 1986
LORENZO M. TAÑ;ADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President,
MELQUIADES P. DE LA CRUZ, ETC., ET AL., respondents.
RESOLUTION
CRUZ, J.:
Due process was invoked by the petitioners in demanding the disclosure of a number of presidential
decrees which they claimed had not been published as required by law. The government argued that
while publication was necessary as a rule, it was not so when it was "otherwise provided," as when
the decrees themselves declared that they were to become effective immediately upon their approval.
In the decision of this case on April 24, 1985, the Court affirmed the necessity for the publication of
some of these decrees, declaring in the dispositive portion as follows:
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so
published, they shall have no binding force and effect.
The petitioners are now before us again, this time to move for reconsideration/clarification of that
decision. 1Specifically, they ask the following questions:
1. What is meant by "law of public nature" or "general applicability"?
2. Must a distinction be made between laws of general applicability and laws which are not?
3. What is meant by "publication"?
4. Where is the publication to be made?
5. When is the publication to be made?
Resolving their own doubts, the petitioners suggest that there should be no distinction between laws
of general applicability and those which are not; that publication means complete publication; and that
the publication must be made forthwith in the Official Gazette. 2
In the Comment 3 required of the then Solicitor General, he claimed first that the motion was a
request for an advisory opinion and should therefore be dismissed, and, on the merits, that the clause
"unless it is otherwise provided" in Article 2 of the Civil Code meant that the publication required
therein was not always imperative; that publication, when necessary, did not have to be made in the
Official Gazette; and that in any case the subject decision was concurred in only by three justices and
consequently not binding. This elicited a Reply 4 refuting these arguments. Came next the February
Revolution and the Court required the new Solicitor General to file a Rejoinder in view of the
supervening events, under Rule 3, Section 18, of the Rules of Court. Responding, he submitted that
issuances intended only for the internal administration of a government agency or for particular
persons did not have to be 'Published; that publication when necessary must be in full and in the
Official Gazette; and that, however, the decision under reconsideration was not binding because it
was not supported by eight members of this Court. 5
The subject of contention is Article 2 of the Civil Code providing as follows:
ART. 2. Laws shall take effect after fifteen days following the completion of their publication
in the Official Gazette, unless it is otherwise provided. This Code shall take effect one year
after such publication.
After a careful study of this provision and of the arguments of the parties, both on the original petition
and on the instant motion, we have come to the conclusion and so hold, that the clause "unless it is
otherwise provided" refers to the date of effectivity and not to the requirement of publication itself,
which cannot in any event be omitted. This clause does not mean that the legislature may make the
law effective immediately upon approval, or on any other date, without its previous publication.
Publication is indispensable in every case, but the legislature may in its discretion provide that the
usual fifteen-day period shall be shortened or extended. An example, as pointed out by the present
Chief Justice in his separate concurrence in the original decision, 6 is the Civil Code which did not
become effective after fifteen days from its publication in the Official Gazette but "one year after such
publication." The general rule did not apply because it was "otherwise provided. "
It is not correct to say that under the disputed clause publication may be dispensed with altogether.
The reason. is that such omission would offend due process insofar as it would deny the public
knowledge of the laws that are supposed to govern the legislature could validly provide that a law e
effective immediately upon its approval notwithstanding the lack of publication (or after an
unreasonably short period after publication), it is not unlikely that persons not aware of it would be
prejudiced as a result and they would be so not because of a failure to comply with but simply
because they did not know of its existence, Significantly, this is not true only of penal laws as is
commonly supposed. One can think of many non-penal measures, like a law on prescription, which
must also be communicated to the persons they may affect before they can begin to operate.
We note at this point the conclusive presumption that every person knows the law, which of course
presupposes that the law has been published if the presumption is to have any legal justification at
all. It is no less important to remember that Section 6 of the Bill of Rights recognizes "the right of the
people to information on matters of public concern," and this certainly applies to, among others, and
indeed especially, the legislative enactments of the government.
8
The term "laws" should refer to all laws and not only to those of general application, for strictly
speaking all laws relate to the people in general albeit there are some that do not apply to them
directly. An example is a law granting citizenship to a particular individual, like a relative of President
Marcos who was decreed instant naturalization. It surely cannot be said that such a law does not
affect the public although it unquestionably does not apply directly to all the people. The subject of
such law is a matter of public interest which any member of the body politic may question in the
political forums or, if he is a proper party, even in the courts of justice. In fact, a law without any
bearing on the public would be invalid as an intrusion of privacy or as class legislation or as an ultra
vires act of the legislature. To be valid, the law must invariably affect the public interest even if it might
be directly applicable only to one individual, or some of the people only, and t to the public as a
whole.
We hold therefore that all statutes, including those of local application and private laws, shall be
published as a condition for their effectivity, which shall begin fifteen days after publication unless a
different effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by the President in
the exercise of legislative powers whenever the same are validly delegated by the legislature or, at
present, directly conferred by the Constitution. administrative rules and regulations must a also be
published if their purpose is to enforce or implement existing law pursuant also to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of
the administrative agency and not the public, need not be published. Neither is publication required of
the so-called letters of instructions issued by administrative superiors concerning the rules or
guidelines to be followed by their subordinates in the performance of their duties.
Accordingly, even the charter of a city must be published notwithstanding that it applies to only a
portion of the national territory and directly affects only the inhabitants of that place. All presidential
decrees must be published, including even, say, those naming a public place after a favored
individual or exempting him from certain prohibitions or requirements. The circulars issued by the
Monetary Board must be published if they are meant not merely to interpret but to "fill in the details" of
the Central Bank Act which that body is supposed to enforce.
However, no publication is required of the instructions issued by, say, the Minister of Social Welfare
on the case studies to be made in petitions for adoption or the rules laid down by the head of a
government agency on the assignments or workload of his personnel or the wearing of office
uniforms. Parenthetically, municipal ordinances are not covered by this rule but by the Local
Government Code.
We agree that publication must be in full or it is no publication at all since its purpose is to inform the
public of the contents of the laws. As correctly pointed out by the petitioners, the mere mention of the
number of the presidential decree, the title of such decree, its whereabouts (e.g., "with Secretary
Tuvera"), the supposed date of effectivity, and in a mere supplement of the Official Gazette cannot
satisfy the publication requirement. This is not even substantial compliance. This was the manner,
incidentally, in which the General Appropriations Act for FY 1975, a presidential decree undeniably of
general applicability and interest, was "published" by the Marcos administration. 7 The evident
purpose was to withhold rather than disclose information on this vital law.
Coming now to the original decision, it is true that only four justices were categorically for publication
in the Official Gazette 8 and that six others felt that publication could be made elsewhere as long as
the people were sufficiently informed. 9 One reserved his vote 10 and another merely acknowledged
the need for due publication without indicating where it should be made. 11 It is therefore necessary
for the present membership of this Court to arrive at a clear consensus on this matter and to lay down
a binding decision supported by the necessary vote.
There is much to be said of the view that the publication need not be made in the Official Gazette,
considering its erratic releases and limited readership. Undoubtedly, newspapers of general
circulation could better perform the function of communicating, the laws to the people as such
periodicals are more easily available, have a wider readership, and come out regularly. The trouble,
though, is that this kind of publication is not the one required or authorized by existing law. As far as
we know, no amendment has been made of Article 2 of the Civil Code. The Solicitor General has not
pointed to such a law, and we have no information that it exists. If it does, it obviously has not yet
been published.
At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal or modify it if
we find it impractical. That is not our function. That function belongs to the legislature. Our task is
merely to interpret and apply the law as conceived and approved by the political departments of the
government in accordance with the prescribed procedure. Consequently, we have no choice but to
pronounce that under Article 2 of the Civil Code, the publication of laws must be made in the Official
Gazett and not elsewhere, as a requirement for their effectivity after fifteen days from such publication
or after a different period provided by the legislature.
We also hold that the publication must be made forthwith or at least as soon as possible, to give
effect to the law pursuant to the said Article 2. There is that possibility, of course, although not
suggested by the parties that a law could be rendered unenforceable by a mere refusal of the
executive, for whatever reason, to cause its publication as required. This is a matter, however, that we
do not need to examine at this time.
Finally, the claim of the former Solicitor General that the instant motion is a request for an advisory
opinion is untenable, to say the least, and deserves no further comment.
The days of the secret laws and the unpublished decrees are over. This is once again an open
society, with all the acts of the government subject to public scrutiny and available always to public
cognizance. This has to be so if our country is to remain democratic, with sovereignty residing in the
people and all government authority emanating from them.
Although they have delegated the power of legislation, they retain the authority to review the work of
their delegates and to ratify or reject it according to their lights, through their freedom of expression
and their right of suffrage. This they cannot do if the acts of the legislature are concealed.
9
Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with
their dark, deep secrets. Mysterious pronouncements and rumored rules cannot be recognized as
binding unless their existence and contents are confirmed by a valid publication intended to make full
disclosure and give proper notice to the people. The furtive law is like a scabbarded saber that cannot
feint parry or cut unless the naked blade is drawn.
WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon their
approval, or as soon thereafter as possible, be published in full in the Official Gazette, to become
effective only after fifteen days from their publication, or on another date specified by the legislature,
in accordance with Article 2 of the Civil Code.
SO ORDERED.
Teehankee, C.J., Feria, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., and Paras, JJ.,
concur.
Separate Opinions
FERNAN, J., concurring:
While concurring in the Court's opinion penned by my distinguished colleague, Mr. Justice Isagani A.
Cruz, I would like to add a few observations. Even as a Member of the defunct Batasang Pambansa, I
took a strong stand against the insidious manner by which the previous dispensation had
promulgated and made effective thousands of decrees, executive orders, letters of instructions, etc.
Never has the law-making power which traditionally belongs to the legislature been used and abused
to satisfy the whims and caprices of a one-man legislative mill as it happened in the past regime.
Thus, in those days, it was not surprising to witness the sad spectacle of two presidential decrees
bearing the same number, although covering two different subject matters. In point is the case of two
presidential decrees bearing number 1686 issued on March 19, 1980, one granting Philippine
citizenship to Michael M. Keon the then President's nephew and the other imposing a tax on every
motor vehicle equipped with airconditioner. This was further exacerbated by the issuance of PD No.
1686-A also on March 19, 1980 granting Philippine citizenship to basketball players Jeffrey Moore
and Dennis George Still
The categorical statement by this Court on the need for publication before any law may be made
effective seeks prevent abuses on the part of the lawmakers and, at the same time, ensures to the
people their constitutional right to due process and to information on matters of public concern.
FELICIANO, J., concurring:
I agree entirely with the opinion of the court so eloquently written by Mr. Justice Isagani A. Cruz. At
the same time, I wish to add a few statements to reflect my understanding of what the Court is saying.
A statute which by its terms provides for its coming into effect immediately upon approval thereof, is
properly interpreted as coming into effect immediately upon publication thereof in the Official Gazette
as provided in Article 2 of the Civil Code. Such statute, in other words, should not be regarded as
purporting literally to come into effect immediately upon its approval or enactment and without need of
publication. For so to interpret such statute would be to collide with the constitutional obstacle posed
by the due process clause. The enforcement of prescriptions which are both unknown to and
unknowable by those subjected to the statute, has been throughout history a common tool of
tyrannical governments. Such application and enforcement constitutes at bottom a negation of the
fundamental principle of legality in the relations between a government and its people.
At the same time, it is clear that the requirement of publication of a statute in the Official Gazette, as
distinguished from any other medium such as a newspaper of general circulation, is embodied in a
statutory norm and is not a constitutional command. The statutory norm is set out in Article 2 of the
Civil Code and is supported and reinforced by Section 1 of Commonwealth Act No. 638 and Section
35 of the Revised Administrative Code. A specification of the Official Gazette as the prescribed
medium of publication may therefore be changed. Article 2 of the Civil Code could, without creating a
constitutional problem, be amended by a subsequent statute providing, for instance, for publication
either in the Official Gazette or in a newspaper of general circulation in the country. Until such an
amendatory statute is in fact enacted, Article 2 of the Civil Code must be obeyed and publication
effected in the Official Gazette and not in any other medium.
Separate Opinions
FERNAN, J., concurring:
While concurring in the Court's opinion penned by my distinguished colleague, Mr. Justice Isagani A.
Cruz, I would like to add a few observations. Even as a Member of the defunct Batasang Pambansa, I
took a strong stand against the insidious manner by which the previous dispensation had
promulgated and made effective thousands of decrees, executive orders, letters of instructions, etc.
Never has the law-making power which traditionally belongs to the legislature been used and abused
to satisfy the whims and caprices of a one-man legislative mill as it happened in the past regime.
Thus, in those days, it was not surprising to witness the sad spectacle of two presidential decrees
bearing the same number, although covering two different subject matters. In point is the case of two
presidential decrees bearing number 1686 issued on March 19, 1980, one granting Philippine
citizenship to Michael M. Keon the then President's nephew and the other imposing a tax on every
motor vehicle equipped with airconditioner. This was further exacerbated by the issuance of PD No.
1686-A also on March 19, 1980 granting Philippine citizenship to basketball players Jeffrey Moore
and Dennis George Still
The categorical statement by this Court on the need for publication before any law may be made
effective seeks prevent abuses on the part of the lawmakers and, at the same time, ensures to the
people their constitutional right to due process and to information on matters of public concern.
10
FELICIANO, J., concurring:
I agree entirely with the opinion of the court so eloquently written by Mr. Justice Isagani A. Cruz. At
the same time, I wish to add a few statements to reflect my understanding of what the Court is saying.
A statute which by its terms provides for its coming into effect immediately upon approval thereof, is
properly interpreted as coming into effect immediately upon publication thereof in the Official Gazette
as provided in Article 2 of the Civil Code. Such statute, in other words, should not be regarded as
purporting literally to come into effect immediately upon its approval or enactment and without need of
publication. For so to interpret such statute would be to collide with the constitutional obstacle posed
by the due process clause. The enforcement of prescriptions which are both unknown to and
unknowable by those subjected to the statute, has been throughout history a common tool of
tyrannical governments. Such application and enforcement constitutes at bottom a negation of the
fundamental principle of legality in the relations between a government and its people.
At the same time, it is clear that the requirement of publication of a statute in the Official Gazette, as
distinguished from any other medium such as a newspaper of general circulation, is embodied in a
statutory norm and is not a constitutional command. The statutory norm is set out in Article 2 of the
Civil Code and is supported and reinforced by Section 1 of Commonwealth Act No. 638 and Section
35 of the Revised Administrative Code. A specification of the Official Gazette as the prescribed
medium of publication may therefore be changed. Article 2 of the Civil Code could, without creating a
constitutional problem, be amended by a subsequent statute providing, for instance, for publication
either in the Official Gazette or in a newspaper of general circulation in the country. Until such an
amendatory statute is in fact enacted, Article 2 of the Civil Code must be obeyed and publication
effected in the Official Gazette and not in any other medium.
3. THIRD DIVISION
G.R. No. 80718 January 29, 1988
FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners,
vs.
COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUIS BERNAL, JR., HEIRS OF
MARISSA BERNAL, namely, GLICERIA DELA CRUZ BERNAL and LUIS BERNAL,
SR., respondents.
R E S O L U T I O N31
CORTES, J.:
This special civil action for certiorari seeks to declare null and void two (2) resolutions of the Special
First Division of the Court of Appeals in the case of Luis Bernal, Sr., et al. v. Felisa Perdosa De Roy,
et al., CA-G.R. CV No. 07286. The first resolution promulgated on 30 September 1987 denied
petitioners' motion for extension of time to file a motion for reconsideration and directed entry of
judgment since the decision in said case had become final; and the second Resolution dated 27
October 1987 denied petitioners' motion for reconsideration for having been filed out of time.
At the outset, this Court could have denied the petition outright for not being verified as required by
Rule 65 section 1 of the Rules of Court. However, even if the instant petition did not suffer from this
defect, this Court, on procedural and substantive grounds, would still resolve to deny it.
The facts of the case are undisputed. The firewall of a burned-out building owned by petitioners
collapsed and destroyed the tailoring shop occupied by the family of private respondents, resulting in
injuries to private respondents and the death of Marissa Bernal, a daughter. Private respondents had
been warned by petitioners to vacate their shop in view of its proximity to the weakened wall but the
former failed to do so. On the basis of the foregoing facts, the Regional Trial Court. First Judicial
Region, Branch XXXVIII, presided by the Hon. Antonio M. Belen, rendered judgment finding
petitioners guilty of gross negligence and awarding damages to private respondents. On appeal, the
decision of the trial court was affirmed in toto by the Court of Appeals in a decision promulgated on
August 17, 1987, a copy of which was received by petitioners on August 25, 1987. On September 9,
1987, the last day of the fifteen-day period to file an appeal, petitioners filed a motion for extension of
time to file a motion for reconsideration, which was eventually denied by the appellate court in the
Resolution of September 30, 1987. Petitioners filed their motion for reconsideration on September 24,
1987 but this was denied in the Resolution of October 27, 1987.
This Court finds that the Court of Appeals did not commit a grave abuse of discretion when it denied
petitioners' motion for extension of time to file a motion for reconsideration, directed entry of judgment
and denied their motion for reconsideration. It correctly applied the rule laid down in Habaluyas
Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5, 1985,138 SCRA 461, that the fifteen-day
period for appealing or for filing a motion for reconsideration cannot be extended. In its Resolution
denying the motion for reconsideration, promulgated on July 30, 1986 (142 SCRA 208), this Court en
banc restated and clarified the rule, to wit:
Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that
no motion for extension of time to file a motion for reconsideration may be filed with the Metropolitan
or Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court. Such a
motion may be filed only in cases pending with the Supreme Court as the court of last resort, which
may in its sound discretion either grant or deny the extension requested. (at p. 212)
Lacsamana v. Second Special Cases Division of the intermediate Appellate Court, [G.R. No. 73146-
53, August 26, 1986, 143 SCRA 643], reiterated the rule and went further to restate and clarify the
modes and periods of appeal.
Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986,144 SCRA 161],stressed
the prospective application of said rule, and explained the operation of the grace period, to wit:
11
 In other words, there is a one-month grace period from the promulgation on May
30, 1986 of the Court's Resolution in the clarificatory Habaluyas case, or up to June
30, 1986, within which the rule barring extensions of time to file motions for new
trial or reconsideration is, as yet, not strictly enforceable.

Since petitioners herein filed their motion for extension on February 27, 1986, it is
still within the grace period, which expired on June 30, 1986, and may still be
allowed.

This grace period was also applied in Mission v. Intermediate Appellate Court [G.R. No. 73669,
October 28, 1986, 145 SCRA 306].]

In the instant case, however, petitioners' motion for extension of time was filed on September 9, 1987,
more than a year after the expiration of the grace period on June 30, 1986. Hence, it is no longer
within the coverage of the grace period. Considering the length of time from the expiration of the
grace period to the promulgation of the decision of the Court of Appeals on August 25, 1987,
petitioners cannot seek refuge in the ignorance of their counsel regarding said rule for their failure to
file a motion for reconsideration within the reglementary period.

Petitioners contend that the rule enunciated in the Habaluyas case should not be made to apply to
the case at bar owing to the non-publication of the Habaluyas decision in the Official Gazette as of
the time the subject decision of the Court of Appeals was promulgated. Contrary to petitioners' view,
there is no law requiring the publication of Supreme Court decisions in the Official Gazette before
they can be binding and as a condition to their becoming effective. It is the bounden duty of counsel
as lawyer in active law practice to keep abreast of decisions of the Supreme Court particularly where
issues have been clarified, consistently reiterated, and published in the advance reports of Supreme
Court decisions (G. R. s) and in such publications as the Supreme Court Reports Annotated (SCRA)
and law journals.

This Court likewise finds that the Court of Appeals committed no grave abuse of discretion in affirming
the trial court's decision holding petitioner liable under Article 2190 of the Civil Code, which provides
that "the proprietor of a building or structure is responsible for the damage resulting from its total or
partial collapse, if it should be due to the lack of necessary repairs.

Nor was there error in rejecting petitioners argument that private respondents had the "last clear
chance" to avoid the accident if only they heeded the. warning to vacate the tailoring shop and ,
therefore, petitioners prior negligence should be disregarded, since the doctrine of "last clear
chance," which has been applied to vehicular accidents, is inapplicable to this case.

WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant petition for lack of
merit.

Fernan (Chairman), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

12

4. SECOND DIVISION
G.R. No. 187378 September 30, 2013
RAMONITO O. ACAAC, PETALFOUNDATION, INC., APOLINARIO M. ELORDE, HECTOR
ACAAC, and ROMEO BULAWIN, Petitioners,
vs.
MELQUIADES D. AZCUNA, JR., in his capacity as Mayor, and MARIETES B. BONALOS, in her
capacity as Municipal Engineer and Building Official-Designate, both of Lopez Jaena
Municipality, Misamis Occidental,Respondents.
RESOLUTION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the Decision2 dated September 30, 2008 and
Resolution3 dated March 9, 2009 of the Court of Appeals (CA) in CA-G.R. CV No. 00284-MIN which
reversed and set aside the Decision4 dated November 26, 2004 of the Regional Trial Court of
Oroquieta City, Branch 2 (RTC) in Civil Case No. 4684 for injunction.
The Facts
Petitioner People’s Eco-Tourism and Livelihood Foundation, Inc.(PETAL) is a non-governmental
organization, founded by petitioner Ramonito O. Acaac, which is engaged in the protection and
conservation of ecology, tourism, and livelihood projects within Misamis Occidental.5 In line with its
objectives, PETAL built some cottages made of indigenous materials on Capayas Island (a 1,605
square meter islet) in 1995 as well as a seminar cottage in 20016which it rented out to the public and
became the source of livelihood of its beneficiaries,7 among whom are petitioners Hector Acaac and
Romeo Bulawin.
On April 11 and May 20, 2002, however, respondents Mayor Melquiades D. Azcuna, Jr. (Azcuna) and
Building Official Marietes B. Bonalos issued separate Notices of Illegal Construction against PETAL
for its failure to apply for a building permit prior to the construction of its buildings in violation of
Presidential Decree No. 1096,8 otherwise known as the "National Building Code of the Philippines,"
ordering it to stop all illegal building activities on Capayas Island. When PETAL failed to comply with
the requirements for the issuance of a building permit, a Third and Final Notice of Illegal Construction
was issued by respondents against it on July 8, 2002,9 but still the same remained unheeded.
It was also on July 8, 2002 that the Sangguniang Bayan of Lopez Jaena (SB) adopted Municipal
Ordinance No. 02, Series of 200210 (subject ordinance) which prohibited, among others: (a) the entry
of any entity, association, corporation or organization inside the sanctuaries;11 and (b) the construction
of any structures, permanent or temporary, on the premises, except if authorized by the local
government.12 On July 12, 2002, Azcuna approved the subject ordinance; hence, the same was
submitted to the Sangguniang Panlalawigan of Misamis Occidental (SP), which in turn, conducted a
joint hearing on the matter. Thereafter, notices were posted at the designated areas, including
Capayas Island, declaring the premises as government property and prohibiting ingress and egress
thereto.13
On August 23, 2002, a Notice of Voluntary Demolition was served upon PETAL directing it to remove
the structures it built on Capayas Island. Among the reasons cited was its violation of the subject
ordinance. A similar notice was also served against individual petitioners on October 25, 2002.
On October 29, 2002, petitioners filed an action praying for the issuance of a temporary restraining
order, injunction and damages15 against respondents before the RTC, docketed as Civil Case No.
4684, alleging that they have prior vested rights to occupy and utilize Capayas Island. PETAL claimed
that its predecessors-in-interest have been in possession thereof since 1961, with whom it entered
into a Memorandum of Agreement for the operation of the said island as a camping, tourism, and
recreational resort; thus, the issuance of the subject ordinance was prejudicial to their interest as they
were deprived of their livelihood. Moreover, PETAL assailed the validity of the subject ordinance on
the following grounds: (a) it was adopted without public consultation; (b) it was not published in a
newspaper of general circulation in the province as required by Republic Act No.7160,16 otherwise
known as "The Local Government Code of 1991" (LGC);and (c) it was not approved by the SP.
Therefore, its implementation should be enjoined.17
In their Answer,18 respondents averred that petitioners have no cause of action against them since
they are not the lawful owners or lessees of Capayas Island, which was classified as timberland and
property belonging to the public domain. Further, they maintained that they have complied with all the
publication and hearing requirements for the passage of the subject ordinance, which was deemed
approved by operation of law for failure of the SP to take any positive action thereon as provided
under the LGC. As such, it is valid and enforceable.
The RTC Ruling
On November 26, 2004, the RTC rendered a Decision19 declaring the subject ordinance as
invalid/void based on the following grounds: (a) PETAL’s protest has not been resolved and that the
subject ordinance was not duly approved by the SP; (b) the said ordinance was not published in a
newspaper of general circulation nor was it posted in public places; (c) Capayas Island is classified as
timberland, hence, not suited to be a bird or fish sanctuary; and (d) the authority and control over
timberlands belong to the national government, through the Department of Environment and Natural
Resources (DENR).20 Based on the foregoing, respondents were ordered, among others, to desist
from closing Capayas Island to the public.21 However, the petitioners were ordered to remove the
structures they built thereon without valid building permits22 since they were found to have no title
over the disputed property.23
Aggrieved, respondents appealed the foregoing pronouncement before the CA, docketed as CA-G.R.
CV No. 00284-MIN.
The Proceedings Before the CA
13
On September 30, 2008, the CA rendered a Decision24 granting respondents’ appeal.
Contrary to the RTC’s ruling, it held that the subject ordinance was deemed approved upon failure of
the SP to declare the same invalid within30 days after its submission in accordance with Section 56
of the LGC.25 It also gave credence to Azcuna’s testimony that the subject ordinance was posted and
published in conspicuous places in their municipality, and in the bulletin board.26 Moreover, public
consultations were conducted with various groups before the subject ordinance was passed.27 The
CA further ruled that the Municipality of Lopez Jaena was vested with sufficient power and authority to
pass and adopt the subject ordinance under Section 447 in relation to Section 16 of the
LGC.28 Therefore, it is not only the DENR that could create and administer sanctuaries.29 Having
enacted the subject ordinance within its powers as a municipality and in accordance with the
procedure prescribed by law, the CA pronounced that the subject ordinance is valid.30
On the other hand, the CA upheld the RTC’s finding that petitioner shave no proprietary rights over
the Capayas Island, thereby rendering their action for injunction improper.31
Petitioners’ motion for reconsideration32 therefrom was denied by the CA in a Resolution33 dated
March 9, 2009. Hence, the instant petition.
The Issue Before the Court
The essential issue in this case is whether or not the subject ordinance is valid and enforceable
against petitioners.34
The Court’s Ruling
The petition lacks merit.
Section 56 of the LGC provides:
SEC. 56. Review of Component City and Municipal Ordinances or Resolutions by the Sangguniang
Panlalawigan. – (a) Within three (3) days after approval, the secretary to the Sangguniang
Panlungsod or Sangguniang Bayan shall forward to the Sangguniang Panlalawigan for review, copies
of approved ordinances and the resolutions approving the local development plans and public
investment programs formulated by the local development councils.
(b) Within thirty (30) days after receipt of copies of such ordinances and resolutions, the
Sangguniang Panlalawigan shall examine the documents or transmit them to the provincial
attorney, or if there be none, to the provincial prosecutor for prompt examination. The
provincial attorney or provincial prosecutor shall, within a period of ten (10) days from receipt
of the documents, inform the Sangguniang Panlalawigan in writing his comments or
recommendations, which may be considered by the Sangguniang Panlalawigan in making
its decision.
(c) If the Sangguniang Panlalawigan finds that such an ordinance or resolution is beyond the
power conferred upon the Sangguniang Panlungsod or Sangguniang Bayan concerned, it
shall declare such ordinance or resolution invalid in whole or in part. The Sangguniang
Panlalawigan shall enter its action in the minutes and shall advise the corresponding city or
municipal authorities of the action it has taken.
(d) If no action has been taken by the Sangguniang Panlalawigan within thirty (30) days after
submission of such an ordinance or resolution, the same shall be presumed consistent with
law and therefore valid.
In this case, petitioners maintain that the subject ordinance cannot be deemed approved through the
mere passage of time considering that the same is still pending with the Committee on Fisheries and
Aquatic Resources of the SP.35 It, however, bears to note that more than 30 days have already
elapsed from the time the said ordinance was submitted to the latter for review by the SB;36 hence, it
should be deemed approved and valid pursuant to Section 56 (d) above. As properly observed by the
CA:
Par. (d) should be read in conjunction with par. (c), in order to arrive at the meaning of the disputed
word, "action." It is clear, based on the foregoing provision, that the action that must be entered in the
minutes of the sangguniang panlalawigan is the declaration of the sangguniang panlalawigan that the
ordinance is invalid in whole or in part. x x x.
This construction would be more in consonance with the rule of statutory construction that the parts of
a statute must be read together in such a manner as to give effect to all of them and that such parts
shall not be construed as contradicting each other. x x x laws are given a reasonable construction
such that apparently conflicting provisions are allowed to stand and given effect by reconciling them,
reference being had to the moving spirit behind the enactment of the statute.37
Neither can the Court give credence to petitioners’ contentions that the subject ordinance was not
published nor posted in accordance with the provisions of the LGC.38 It is noteworthy that petitioners’
own evidence reveals that a public hearing39 was conducted prior to the promulgation of the subject
ordinance. Moreover, other than their bare allegations, petitioners failed to present any evidence to
show that no publication or posting of the subject ordinance was made. In contrast, Azcuna had
testified that they have complied with the publication and posting requirements.40 While it is true that
he likewise failed to submit any other evidence thereon, still, in accordance with the presumption of
validity in favor of an ordinance, its constitutionality or legality should be upheld in the absence of any
controverting evidence that the procedure prescribed by law was not observed in its enactment.
Likewise, petitioners had the burden of proving their own allegation, which they, however, failed to do.
In the similar case of Figuerres v. CA,41 citing United States v. Cristobal,42 the Court upheld the
presumptive validity of the ordinance therein despite the lack of controverting evidence on the part of
the local government to show that public hearings were conducted in light of: (a) the oppositor’s equal
lack of controverting evidence to demonstrate the local government’s non-compliance with the said
public hearing; and (b) the fact that the local government’s non-compliance was a negative allegation
essential to the oppositor’s cause of action:
14
However, it is noteworthy that apart from her bare assertions, petitioner Figuerres has not presented
any evidence to show that no public hearings were conducted prior to the enactment of the
ordinances in question. On the other hand, the Municipality of Mandaluyong claims that public
hearings were indeed conducted before the subject ordinances were adopted, although it likewise
failed to submit any evidence to establish this allegation. However, in accordance with the
presumption of validity in favor of an ordinance, their constitutionality or legality should be upheld in
the absence of evidence showing that the procedure prescribed by law was not observed in their
enactment. In an analogous case, United States v. Cristobal, it was alleged that the ordinance making
it a crime for anyone to obstruct waterways had not been submitted by the provincial board as
required by §§2232-2233 of the Administrative Code. In rejecting this contention, the Court held:

From the judgment of the Court of First Instance the defendant appealed to this court upon the theory
that the ordinance in question was adopted without authority on the part of the municipality and was
therefore unconstitutional. The appellant argues that there was no proof adduced during the trial of
the cause showing that said ordinance had been approved by the provincial board. Considering the
provisions of law that it is the duty of the provincial board to approve or disapprove ordinances
adopted by the municipal councils of the different municipalities, we will assume, in the absence of
proof to the contrary, that the law has been complied with.

We have a right to assume that officials have done that which the law requires them to do, in the
absence of positive proof to the contrary.

Furthermore, the lack of a public hearing is a negative allegation essential to petitioner's cause of
action in the present case. Hence, as petitioner is the party asserting it, she has the burden of proof.
Since petitioner failed to rebut the presumption of validity in favor of the subject ordinances and to
discharge the burden of proving that no public hearings were conducted prior to the enactment
thereof, we are constrained to uphold their constitutionality or legality.43 (Emphases supplied, citation
omitted)

All told, the Court finds no reversible error committed by the CA in upholding the validity of the subject
ordinance.

In any event, petitioners have not shown any valid title44 to the property in dispute to be entitled to its
possession. Besides, the RTC’s order directing the removal of the structures built by petitioners on
Capayas Island without building permits was not appealed. As such, the same should now be
deemed as final and conclusive upon them.

WHEREFORE, the petition is DENIED. The Decision dated September 30, 2008 and Resolution
dated March 9, 2009 of the Court of Appeals in CA-G.R. CV No. 00284-MIN are hereby AFFIRMED.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

15
 ARTICLE 4 - PROSPECTIVITY OF LAWS
5. A.M. No. MTJ-92-706 March 29, 1995
LUPO ALMODIEL ATIENZA, complainant,
vs.
JUDGE FRANCISCO F. BRILLANTES, JR., Metropolitan Trial Court, Branch 28,
Manila, respondent.
QUIASON, J.:
This is a complaint by Lupo A. Atienza for Gross Immorality and Appearance of Impropriety against
Judge Francisco Brillantes, Jr., Presiding Judge of the Metropolitan Trial Court, Branch 20, Manila.
Complainant alleges that he has two children with Yolanda De Castro, who are living together at No.
34 Galaxy Street, Bel-Air Subdivision, Makati, Metro Manila. He stays in said house, which he
purchased in 1987, whenever he is in Manila.
In December 1991, upon opening the door to his bedroom, he saw respondent sleeping on his
(complainant's) bed. Upon inquiry, he was told by the houseboy that respondent had been cohabiting
with De Castro. Complainant did not bother to wake up respondent and instead left the house after
giving instructions to his houseboy to take care of his children.
Thereafter, respondent prevented him from visiting his children and even alienated the affection of his
children for him.
Complainant claims that respondent is married to one Zenaida Ongkiko with whom he has five
children, as appearing in his 1986 and 1991 sworn statements of assets and liabilities. Furthermore,
he alleges that respondent caused his arrest on January 13, 1992, after he had a heated argument
with De Castro inside the latter's office.
For his part, respondent alleges that complainant was not married to De Castro and that the filing of
the administrative action was related to complainant's claim on the Bel-Air residence, which was
disputed by De Castro.
Respondent denies that he caused complainant's arrest and claims that he was even a witness to the
withdrawal of the complaint for Grave Slander filed by De Castro against complainant. According to
him, it was the sister of De Castro who called the police to arrest complainant.
Respondent also denies having been married to Ongkiko, although he admits having five children
with her. He alleges that while he and Ongkiko went through a marriage ceremony before a Nueva
Ecija town mayor on April 25, 1965, the same was not a valid marriage for lack of a marriage license.
Upon the request of the parents of Ongkiko, respondent went through another marriage ceremony
with her in Manila on June 5, 1965. Again, neither party applied for a marriage license. Ongkiko
abandoned respondent 17 years ago, leaving their children to his care and custody as a single
parent.
Respondent claims that when he married De Castro in civil rites in Los Angeles, California on
December 4, 1991, he believed, in all good faith and for all legal intents and purposes, that he was
single because his first marriage was solemnized without a license.
Under the Family Code, there must be a judicial declaration of the nullity of a previous marriage
before a party thereto can enter into a second marriage. Article 40 of said Code provides:
The absolute nullity of a previous marriage may be invoked for the purposes of
remarriage on the basis solely of a final judgment declaring such previous marriage
void.
Respondent argues that the provision of Article 40 of the Family Code does not apply to him
considering that his first marriage took place in 1965 and was governed by the Civil Code of the
Philippines; while the second marriage took place in 1991 and governed by the Family Code.
Article 40 is applicable to remarriages entered into after the effectivity of the Family Code on August
3, 1988 regardless of the date of the first marriage. Besides, under Article 256 of the Family Code,
said Article is given "retroactive effect insofar as it does not prejudice or impair vested or acquired
rights in accordance with the Civil Code or other laws." This is particularly true with Article 40, which is
a rule of procedure. Respondent has not shown any vested right that was impaired by the application
of Article 40 to his case.
The fact that procedural statutes may somehow affect the litigants' rights may not preclude their
retroactive application to pending actions. The retroactive application of procedural laws is not
violative of any right of a person who may feel that he is adversely affected (Gregorio v. Court of
Appeals, 26 SCRA 229 [1968]). The reason is that as a general rule no vested right may attach to,
nor arise from, procedural laws (Billones v. Court of Industrial Relations, 14 SCRA 674 [1965]).
Respondent is the last person allowed to invoke good faith. He made a mockery of the institution of
marriage and employed deceit to be able to cohabit with a woman, who beget him five children.
Respondent passed the Bar examinations in 1962 and was admitted to the practice of law in 1963. At
the time he went through the two marriage ceremonies with Ongkiko, he was already a lawyer. Yet,
he never secured any marriage license. Any law student would know that a marriage license is
necessary before one can get married. Respondent was given an opportunity to correct the flaw in his
first marriage when he and Ongkiko were married for the second time. His failure to secure a
marriage license on these two occasions betrays his sinister motives and bad faith.
It is evident that respondent failed to meet the standard of moral fitness for membership in the legal
profession.
16
While the deceit employed by respondent existed prior to his appointment as a Metropolitan Trial
Judge, his immoral and illegal act of cohabiting with De Castro began and continued when he was
already in the judiciary.

The Code of Judicial Ethics mandates that the conduct of a judge must be free of a whiff of
impropriety, not only with respect to his performance of his judicial duties but also as to his behavior
as a private individual. There is no duality of morality. A public figure is also judged by his private life.
A judge, in order to promote public confidence in the integrity and impartiality of the judiciary, must
behave with propriety at all times, in the performance of his judicial duties and in his everyday life.
These are judicial guideposts too self-evident to be overlooked. No position exacts a greater demand
on moral righteousness and uprightness of an individual than a seat in the judiciary (Imbing v.
Tiongzon, 229 SCRA 690 [1994]).

WHEREFORE, respondent is DISMISSED from the service with forfeiture of all leave and retirement
benefits and with prejudice to reappointment in any branch, instrumentality, or agency of the
government, including government-owned and controlled corporations. This decision is immediately
executory.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza and Francisco, JJ., concur.

17
 A parcel of land (Lot No. 159-B), being a portion of Lot 159, situated in the Bo. of Alabang,
6. G.R. No. 179922 December 16, 2008 Municipality of Muntinlupa, Province of Rizal, x x x containing an area of Thirteen Thousand
Four Hundred Forty One (13,441) square meters.
JUAN DE DIOS CARLOS, petitioner,
vs. Parcel No. 3
FELICIDAD SANDOVAL, also known as FELICIDAD S. VDA. DE CARLOS or FELICIDAD
SANDOVAL CARLOS or FELICIDAD SANDOVAL VDA. DE CARLOS, and TEOFILO CARLOS A parcel of land (Lot 159-B-2 of the subd. plan [LRC] Psd-325903, approved as a non-subd.
II, respondents. project), being a portion of Lot 159-B [LRC] Psd- Alabang, Mun. of Muntinlupa, Metro Manila,
Island of Luzon. Bounded on the NE, points 2 to 4 by Lot 155, Muntinlupa Estate; on the SE,
DECISION point 4 to 5 by Lot 159-B-5; on the S, points 5 to 1 by Lot 159-B-3; on the W, points 1 to 2 by
Lot 159-B-1 (Road widening) all of the subd. plan, containing an area of ONE HUNDRED
THIRTY (130) SQ. METERS, more or less.
REYES, R.T., J.:
PARCEL No. 4
ONLY a spouse can initiate an action to sever the marital bond for marriages solemnized during the
effectivity of the Family Code, except cases commenced prior to March 15, 2003. The nullity and
annulment of a marriage cannot be declared in a judgment on the pleadings, summary judgment, or A parcel of land (Lot 28-C of the subd. plan Psd-13-007090, being a portion of Lot 28,
confession of judgment. Muntinlupa Estate, L.R.C. Rec. No. 6137), situated in the Bo. of Alabang, Mun. of
Muntinlupa, Metro Manila. Bounded on the NE, along lines 1-2 by Lot 27, Muntinlupa Estate;
on the East & SE, along lines 2 to 6 by Mangangata River; and on the West., along line 6-1,
We pronounce these principles as We review on certiorari the Decision1 of the Court of Appeals (CA) by Lot 28-B of the subd. plan x x x containing an area of ONE THUSAND AND SEVENTY-
which reversed and set aside the summary judgment2 of the Regional Trial Court (RTC) in an action SIX (1,076) SQUARE METERS.
for declaration of nullity of marriage, status of a child, recovery of property, reconveyance, sum of
money, and damages.
PARCEL No. 5
The Facts
PARCELA DE TERRENO No. 50, Manzana No. 18, de la subd. de Solocan. Linda por el
NW, con la parcela 49; por el NE, con la parcela 36; por el SE, con la parcela 51; y por el
The events that led to the institution of the instant suitare unveiled as follows: SW, con la calle Dos Castillas. Partiendo de un punto marcado 1 en el plano, el cual se halla
a S. gds. 01'W, 72.50 mts. Desde el punto 1 de esta manzana, que es un mojon de concreto
Spouses Felix B. Carlos and Felipa Elemia died intestate. They left six parcels of land to their de la Ciudad de Manila, situado on el esquina E. que forman las Calles Laong Laan y Dos.
compulsory heirs, Teofilo Carlos and petitioner Juan De Dios Carlos. The lots are particularly Castillas, continiendo un extension superficial de CIENTO CINCUENTA (150) METROS
described as follows: CUADRADOS.

Parcel No. 1 PARCEL No. 6

Lot No. 162 of the MUNTINLUPA ESTATE SUBDIVISION, Case No. 6137 of the Court of
Land Registration.
Exemption from the provisions of Article 567 of the Civil Code is specifically reserved.
Area: 1 hectare, 06 ares, 07 centares.
PARCELA DE TERRENO No. 51, Manzana No. 18, de la subd. De Solocon. Linda por el
NW, con la parcela 50; por el NE, con la parcela 37; por el SE, con la parcela 52; por el SW,
con la Calle Dos Castillas. Partiendo de un punto Marcado 1 en el plano, el cual se halla at
S. 43 gds. 01'E, 82.50 mts. Desde el punto 1 de esta manzana, que es un mojon de
concreto de la Ciudad de Manila, situado on el esquina E. que forman las Calles Laong
Laan y Dos. Castillas, continiendo una extension superficial de CIENTO CINCUENTA (150)
METROS CUADRADOS.3

Parcel No. 2 During the lifetime of Felix Carlos, he agreed to transfer his estate to Teofilo. The agreement was
made in order to avoid the payment of inheritance taxes. Teofilo, in turn, undertook to deliver and turn
over the share of the other legal heir, petitioner Juan De Dios Carlos.

18
Eventually, the first three (3) parcels of land were transferred and registered in the name of Teofilo.
These three (3) lots are now covered by Transfer Certificate of Title (TCT) No. 234824 issued by the
Registry of Deeds of Makati City; TCT No. 139061 issued by the Registry of Deeds of Makati City;
and TCT No. 139058 issued by the Registry of Deeds of Makati City.
Parcel No. 4 was registered in the name of petitioner. The lot is now covered by TCT No. 160401
issued by the Registry of Deeds of Makati City.
On May 13, 1992, Teofilo died intestate. He was survived by respondents Felicidad and their son,
Teofilo Carlos II (Teofilo II). Upon Teofilo's death, Parcel Nos. 5 & 6 were registered in the name of
respondent Felicidad and co-respondent, Teofilo II. The said two (2) parcels of land are covered by
TCT Nos. 219877 and 210878, respectively, issued by the Registry of Deeds of Manila.
In 1994, petitioner instituted a suit against respondents before the RTC in Muntinlupa City, docketed
as Civil Case No. 94-1964. In the said case, the parties submitted and caused the approval of a
partial compromise agreement. Under the compromise, the parties acknowledged their respective
shares in the proceeds from the sale of a portion of the first parcel of land. This includes the
remaining 6,691-square-meter portion of said land.
On September 17, 1994, the parties executed a deed of extrajudicial partition, dividing the remaining
land of the first parcel between them.
Meanwhile, in a separate case entitled Rillo v. Carlos,4 2,331 square meters of the second parcel of
land were adjudicated in favor of plaintiffs Rillo. The remaining 10,000-square meter portion was later
divided between petitioner and respondents.
The division was incorporated in a supplemental compromise agreement executed on August 17,
1994, with respect to Civil Case No. 94-1964. The parties submitted the supplemental compromise
agreement, which was approved accordingly.
Petitioner and respondents entered into two more contracts in August 1994. Under the contracts, the
parties equally divided between them the third and fourth parcels of land.
In August 1995, petitioner commenced an action, docketed as Civil Case No. 95-135, against
respondents before the court a quo with the following causes of action: (a) declaration of nullity of
marriage; (b) status of a child; (c) recovery of property; (d) reconveyance; and (e) sum of money and
damages. The complaint was raffled to Branch 256 of the RTC in Muntinlupa.
In his complaint, petitioner asserted that the marriage between his late brother Teofilo and respondent
Felicidad was a nullity in view of the absence of the required marriage license. He likewise
maintained that his deceased brother was neither the natural nor the adoptive father of respondent
Teofilo Carlos II.
Petitioner likewise sought the avoidance of the contracts he entered into with respondent Felicidad
with respect to the subject real properties. He also prayed for the cancellation of the certificates of title
issued in the name of respondents. He argued that the properties covered by such certificates of title,
including the sums received by respondents as proceeds, should be reconveyed to him.
Finally, petitioner claimed indemnification as and by way of moral and exemplary damages, attorney's
fees, litigation expenses, and costs of suit.
On October 16, 1995, respondents submitted their answer. They denied the material averments of
petitioner's complaint. Respondents contended that the dearth of details regarding the requisite
marriage license did not invalidate Felicidad's marriage to Teofilo. Respondents declared that Teofilo
II was the illegitimate child of the deceased Teofilo Carlos with another woman.
On the grounds of lack of cause of action and lack of jurisdiction over the subject matter, respondents
prayed for the dismissal of the case before the trial court. They also asked that their counterclaims for
moral and exemplary damages, as well as attorney's fees, be granted.
But before the parties could even proceed to pre-trial, respondents moved for summary judgment.
Attached to the motion was the affidavit of the justice of the peace who solemnized the marriage.
Respondents also submitted the Certificate of Live Birth of respondent Teofilo II. In the certificate, the
late Teofilo Carlos and respondent Felicidad were designated as parents.
On January 5, 1996, petitioner opposed the motion for summary judgment on the ground of
irregularity of the contract evidencing the marriage. In the same breath, petitioner lodged his own
motion for summary judgment. Petitioner presented a certification from the Local Civil Registrar of
Calumpit, Bulacan, certifying that there is no record of birth of respondent Teofilo II.
Petitioner also incorporated in the counter-motion for summary judgment the testimony of respondent
Felicidad in another case. Said testimony was made in Civil Case No. 89-2384, entitled Carlos v.
Gorospe, before the RTC Branch 255, Las Piñas. In her testimony, respondent Felicidad narrated that
co-respondent Teofilo II is her child with Teofilo.5
Subsequently, the Office of the City Prosecutor of Muntinlupa submitted to the trial court its report and
manifestation, discounting the possibility of collusion between the parties.
RTC and CA Dispositions
On April 8, 1996, the RTC rendered judgment, disposing as follows:
WHEREFORE, premises considered, defendant's (respondent's) Motion for Summary
Judgment is hereby denied. Plaintiff's (petitioner's) Counter-Motion for Summary Judgment
is hereby granted and summary judgment is hereby rendered in favor of plaintiff as follows:
1. Declaring the marriage between defendant Felicidad Sandoval and Teofilo Carlos
solemnized at Silang, Cavite on May 14, 1962, evidenced by the Marriage Certificate
submitted in this case, null and void ab initio for lack of the requisite marriage license;
19
 2. Declaring that the defendant minor, Teofilo S. Carlos II, is not the natural, illegitimate, or
legally adopted child of the late Teofilo E. Carlos;
The CA opined:
3. Ordering defendant Sandoval to pay and restitute to plaintiff the sum of P18,924,800.00
together with the interest thereon at the legal rate from date of filing of the instant complaint
until fully paid;
4. Declaring plaintiff as the sole and exclusive owner of the parcel of land, less the portion
adjudicated to plaintiffs in Civil Case No. 11975, covered by TCT No. 139061 of the Register
of Deeds of Makati City, and ordering said Register of Deeds to cancel said title and to issue
another title in the sole name of plaintiff herein;
5. Declaring the Contract, Annex "K" of complaint, between plaintiff and defendant Sandoval
null and void, and ordering the Register of Deeds of Makati City to cancel TCT No. 139058
in the name of Teofilo Carlos, and to issue another title in the sole name of plaintiff herein;
6. Declaring the Contract, Annex M of the complaint, between plaintiff and defendant
Sandoval null and void;
7. Ordering the cancellation of TCT No. 210877 in the names of defendant Sandoval and
defendant minor Teofilo S. Carlos II and ordering the Register of Deeds of Manila to issue
another title in the exclusive name of plaintiff herein;
8. Ordering the cancellation of TCT No. 210878 in the name of defendant Sandoval and
defendant Minor Teofilo S. Carlos II and ordering the Register of Deeds of Manila to issue
another title in the sole name of plaintiff herein.
Let this case be set for hearing for the reception of plaintiff's evidence on his claim for moral
damages, exemplary damages, attorney's fees, appearance fees, and litigation expenses on
June 7, 1996 at 1:30 o'clock in the afternoon.
SO ORDERED.6
Dissatisfied, respondents appealed to the CA. In the appeal, respondents argued, inter alia, that the
trial court acted without or in excess of jurisdiction in rendering summary judgment annulling the
marriage of Teofilo, Sr. and Felicidad and in declaring Teofilo II as not an illegitimate child of Teofilo,
Sr.
On October 15, 2002, the CA reversed and set aside the RTC ruling, disposing as follows:
WHEREFORE, the summary judgment appealed from is REVERSED and SET ASIDE and
in lieu thereof, a new one is entered REMANDING the case to the court of origin for further
proceedings.
SO ORDERED.7
We find the rendition of the herein appealed summary judgment by the court a quo contrary
to law and public policy as ensconced in the aforesaid safeguards. The fact that it was
appellants who first sought summary judgment from the trial court, did not justify the grant
thereof in favor of appellee. Not being an action "to recover upon a claim" or "to obtain a
declaratory relief," the rule on summary judgment apply (sic) to an action to annul a
marriage. The mere fact that no genuine issue was presented and the desire to expedite the
disposition of the case cannot justify a misinterpretation of the rule. The first paragraph of
Article 88 and 101 of the Civil Code expressly prohibit the rendition of decree of annulment
of a marriage upon a stipulation of facts or a confession of judgment. Yet, the affidavits
annexed to the petition for summary judgment practically amount to these methods explicitly
proscribed by the law.
We are not unmindful of appellee's argument that the foregoing safeguards have traditionally
been applied to prevent collusion of spouses in the matter of dissolution of marriages and
that the death of Teofilo Carlos on May 13, 1992 had effectively dissolved the marriage
herein impugned. The fact, however, that appellee's own brother and appellant Felicidad
Sandoval lived together as husband and wife for thirty years and that the annulment of their
marriage is the very means by which the latter is sought to be deprived of her participation in
the estate left by the former call for a closer and more thorough inquiry into the
circumstances surrounding the case. Rather that the summary nature by which the court a
quo resolved the issues in the case, the rule is to the effect that the material facts alleged in
the complaint for annulment of marriage should always be proved. Section 1, Rule 19 of the
Revised Rules of Court provides:
"Section 1. Judgment on the pleadings. - Where an answer fails to tender an issue,
or otherwise admits the material allegations of the adverse party's pleading, the
court may, on motion of that party, direct judgment on such pleading. But in actions
for annulment of marriage or for legal separation, the material facts alleged in the
complaint shall always be proved." (Underscoring supplied)
Moreover, even if We were to sustain the applicability of the rules on summary judgment to
the case at bench, Our perusal of the record shows that the finding of the court a quo for
appellee would still not be warranted. While it may be readily conceded that a valid marriage
license is among the formal requisites of marriage, the absence of which renders the
marriage void ab initio pursuant to Article 80(3) in relation to Article 58 of the Civil Code the
failure to reflect the serial number of the marriage license on the marriage contract
evidencing the marriage between Teofilo Carlos and appellant Felicidad Sandoval, although
irregular, is not as fatal as appellee represents it to be. Aside from the dearth of evidence to
the contrary, appellant Felicidad Sandoval's affirmation of the existence of said marriage
license is corroborated by the following statement in the affidavit executed by Godofredo
Fojas, then Justice of the Peace who officiated the impugned marriage, to wit:
20
 "That as far as I could remember, there was a marriage license issued at Silang,
Cavite on May 14, 1962 as basis of the said marriage contract executed by Teofilo
Carlos and Felicidad Sandoval, but the number of said marriage license was
inadvertently not placed in the marriage contract for the reason that it was the
Office Clerk who filled up the blanks in the Marriage Contract who in turn, may have
overlooked the same."
Rather than the inferences merely drawn by the trial court, We are of the considered view
that the veracity and credibility of the foregoing statement as well as the motivations
underlying the same should be properly threshed out in a trial of the case on the merits.
If the non-presentation of the marriage contract - the primary evidence of marriage - is not
proof that a marriage did not take place, neither should appellants' non-presentation of the
subject marriage license be taken as proof that the same was not procured. The burden of
proof to show the nullity of the marriage, it must be emphasized, rests upon the plaintiff and
any doubt should be resolved in favor of the validity of the marriage.
Considering that the burden of proof also rests on the party who disputes the legitimacy of a
particular party, the same may be said of the trial court's rejection of the relationship
between appellant Teofilo Carlos II and his putative father on the basis of the inconsistencies
in appellant Felicidad Sandoval's statements. Although it had effectively disavowed
appellant's prior claims regarding the legitimacy of appellant Teofilo Carlos II, the averment
in the answer that he is the illegitimate son of appellee's brother, to Our mind, did not
altogether foreclose the possibility of the said appellant's illegitimate filiation, his right to
prove the same or, for that matter, his entitlement to inheritance rights as such.
Without trial on the merits having been conducted in the case, We find appellee's bare
allegation that appellant Teofilo Carlos II was merely purchased from an indigent couple by
appellant Felicidad Sandoval, on the whole, insufficient to support what could well be a
minor's total forfeiture of the rights arising from his putative filiation. Inconsistent though it
may be to her previous statements, appellant Felicidad Sandoval's declaration regarding the
illegitimate filiation of Teofilo Carlos II is more credible when considered in the light of the
fact that, during the last eight years of his life, Teofilo Carlos allowed said appellant the use
of his name and the shelter of his household. The least that the trial court could have done in
the premises was to conduct a trial on the merits in order to be able to thoroughly resolve
the issues pertaining to the filiation of appellant Teofilo Carlos II.8
On November 22, 2006, petitioner moved for reconsideration and for the inhibition of the ponente,
Justice Rebecca De Guia-Salvador. The CA denied the twin motions.
Issues
In this petition under Rule 45, petitioner hoists the following issues:
1. That, in reversing and setting aside the Summary Judgment under the Decision, Annex A
hereof, and in denying petitioner's Motion for reconsideration under the Resolution, Annex F
hereof, with respect to the nullity of the impugned marriage, petitioner respectfully submits
that the Court of Appeals committed a grave reversible error in applying Articles 88 and 101
of the Civil Code, despite the fact that the circumstances of this case are different from that
contemplated and intended by law, or has otherwise decided a question of substance not
theretofore decided by the Supreme Court, or has decided it in a manner probably not in
accord with law or with the applicable decisions of this Honorable Court;
2. That in setting aside and reversing the Summary Judgment and, in lieu thereof, entering
another remanding the case to the court of origin for further proceedings, petitioner most
respectfully submits that the Court of Appeals committed a serious reversible error in
applying Section 1, Rule 19 (now Section 1, Rule 34) of the Rules of Court providing for
judgment on the pleadings, instead of Rule 35 governing Summary Judgments;
3. That in reversing and setting aside the Summary Judgment and, in lieu thereof, entering
another remanding the case to the court of origin for further proceedings, petitioner most
respectfully submits that the Court of Appeals committed grave abuse of discretion,
disregarded judicial admissions, made findings on ground of speculations, surmises, and
conjectures, or otherwise committed misapplications of the laws and misapprehension of the
facts.9 (Underscoring supplied)
Essentially, the Court is tasked to resolve whether a marriage may be declared void ab initio through
a judgment on the pleadings or a summary judgment and without the benefit of a trial. But there are
other procedural issues, including the capacity of one who is not a spouse in bringing the action for
nullity of marriage.
Our Ruling
I. The grounds for declaration of absolute nullity of marriage must be proved. Neither
judgment on the pleadings nor summary judgment is allowed. So is confession of judgment
disallowed.
Petitioner faults the CA in applying Section 1, Rule 1910 of the Revised Rules of Court, which
provides:
SECTION 1. Judgment on the pleadings. - Where an answer fails to tender an issue, or
otherwise admits the material allegations of the adverse party's pleading, the court may, on
motion of that party, direct judgment on such pleading. But in actions for annulment of
marriage or for legal separation, the material facts alleged in the complaint shall always be
proved.
He argues that the CA should have applied Rule 35 of the Rules of Court governing summary
judgment, instead of the rule on judgment on the pleadings.
21
Petitioner is misguided. The CA did not limit its finding solely within the provisions of the Rule on
judgment on the pleadings. In disagreeing with the trial court, the CA likewise considered the
provisions on summary judgments, to wit:
Moreover, even if We are to sustain the applicability of the rules on summary judgment to
the case at bench, Our perusal of the record shows that the finding of the court a quo for
appellee would still not be warranted. x x x11
But whether it is based on judgment on the pleadings or summary judgment, the CA was correct in
reversing the summary judgment rendered by the trial court. Both the rules on judgment on the
pleadings and summary judgments have no place in cases of declaration of absolute nullity of
marriage and even in annulment of marriage.
With the advent of A.M. No. 02-11-10-SC, known as "Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages," the question on the application of summary
judgments or even judgment on the pleadings in cases of nullity or annulment of marriage has been
stamped with clarity. The significant principle laid down by the said Rule, which took effect on March
15, 200312 is found in Section 17, viz.:
SEC. 17. Trial. - (1) The presiding judge shall personally conduct the trial of the case. No
delegation of evidence to a commissioner shall be allowed except as to matters involving
property relations of the spouses.
(2) The grounds for declaration of absolute nullity or annulment of marriage must be
proved. No judgment on the pleadings, summary judgment, or confession of judgment shall
be allowed. (Underscoring supplied)
Likewise instructive is the Court's pronouncement in Republic v. Sandiganbayan.13 In that case, We
excluded actions for nullity or annulment of marriage from the application of summary judgments.
Prescinding from the foregoing discussion, save for annulment of marriage or declaration of
its nullity or for legal separation, summary judgment is applicable to all kinds of
actions.14 (Underscoring supplied)
By issuing said summary judgment, the trial court has divested the State of its lawful right and duty to
intervene in the case. The participation of the State is not terminated by the declaration of the public
prosecutor that no collusion exists between the parties. The State should have been given the
opportunity to present controverting evidence before the judgment was rendered.15
Both the Civil Code and the Family Code ordain that the court should order the prosecuting attorney
to appear and intervene for the State. It is at this stage when the public prosecutor sees to it that
there is no suppression of evidence. Concomitantly, even if there is no suppression of evidence, the
public prosecutor has to make sure that the evidence to be presented or laid down before the court is
not fabricated.
To further bolster its role towards the preservation of marriage, the Rule on Declaration of Absolute
Nullity of Void Marriages reiterates the duty of the public prosecutor, viz.:
SEC. 13. Effect of failure to appear at the pre-trial. - (a) x x x
(b) x x x If there is no collusion, the court shall require the public prosecutor to intervene for
the State during the trial on the merits to prevent suppression or fabrication of evidence.
(Underscoring supplied)
Truly, only the active participation of the public prosecutor or the Solicitor General will ensure that the
interest of the State is represented and protected in proceedings for declaration of nullity of marriages
by preventing the fabrication or suppression of evidence.16
II. A petition for declaration of absolute nullity of void marriage may be filed solely by the
husband or wife. Exceptions: (1) Nullity of marriage cases commenced before the effectivity of
A.M. No. 02-11-10-SC; and (2) Marriages celebrated during the effectivity of the Civil Code.
Under the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable
Marriages, the petition for declaration of absolute nullity of marriage may not be filed by any party
outside of the marriage. The Rule made it exclusively a right of the spouses by stating:
SEC. 2. Petition for declaration of absolute nullity of void marriages. -
(a) Who may file. - A petition for declaration of absolute nullity of void marriage may be filed
solely by the husband or the wife. (Underscoring supplied)
Section 2(a) of the Rule makes it the sole right of the husband or the wife to file a petition for
declaration of absolute nullity of void marriage. The rationale of the Rule is enlightening, viz.:
Only an aggrieved or injured spouse may file a petition for annulment of voidable marriages
or declaration of absolute nullity of void marriages. Such petition cannot be filed by
compulsory or intestate heirs of the spouses or by the State. The Committee is of the belief
that they do not have a legal right to file the petition. Compulsory or intestate heirs have only
inchoate rights prior to the death of their predecessor, and, hence, can only question the
validity of the marriage of the spouses upon the death of a spouse in a proceeding for the
settlement of the estate of the deceased spouse filed in the regular courts. On the other
hand, the concern of the State is to preserve marriage and not to seek its
dissolution.17 (Underscoring supplied)
The new Rule recognizes that the husband and the wife are the sole architects of a healthy, loving,
peaceful marriage. They are the only ones who can decide when and how to build the foundations of
marriage. The spouses alone are the engineers of their marital life. They are simultaneously the
directors and actors of their matrimonial true-to-life play. Hence, they alone can and should decide
when to take a cut, but only in accordance with the grounds allowed by law.
22
The innovation incorporated in A.M. No. 02-11-10-SC sets forth a demarcation line between
marriages covered by the Family Code and those solemnized under the Civil Code. The Rule extends
only to marriages entered into during the effectivity of the Family Code which took effect on August 3,
1988.18
The advent of the Rule on Declaration of Absolute Nullity of Void Marriages marks the beginning of
the end of the right of the heirs of the deceased spouse to bring a nullity of marriage case against the
surviving spouse. But the Rule never intended to deprive the compulsory or intestate heirs of their
successional rights.
While A.M. No. 02-11-10-SC declares that a petition for declaration of absolute nullity of marriage
may be filed solely by the husband or the wife, it does not mean that the compulsory or intestate heirs
are without any recourse under the law. They can still protect their successional right, for, as stated in
the Rationale of the Rules on Annulment of Voidable Marriages and Declaration of Absolute Nullity of
Void Marriages, compulsory or intestate heirs can still question the validity of the marriage of the
spouses, not in a proceeding for declaration of nullity but upon the death of a spouse in a proceeding
for the settlement of the estate of the deceased spouse filed in the regular courts.19
It is emphasized, however, that the Rule does not apply to cases already commenced before March
15, 2003 although the marriage involved is within the coverage of the Family Code. This is so, as the
new Rule which became effective on March 15, 200320 is prospective in its application. Thus, the
Court held in Enrico v. Heirs of Sps. Medinaceli,21 viz.:
As has been emphasized, A.M. No. 02-11-10-SC covers marriages under the Family Code
of the Philippines, and is prospective in its application.22 (Underscoring supplied)
Petitioner commenced the nullity of marriage case against respondent Felicidad in 1995. The
marriage in controversy was celebrated on May 14, 1962. Which law would govern depends upon
when the marriage took place.23
The marriage having been solemnized prior to the effectivity of the Family Code, the applicable law is
the Civil Code which was the law in effect at the time of its celebration.24 But the Civil Code is silent as
to who may bring an action to declare the marriage void. Does this mean that any person can bring
an action for the declaration of nullity of marriage?
We respond in the negative. The absence of a provision in the Civil Code cannot be construed as a
license for any person to institute a nullity of marriage case. Such person must appear to be the party
who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of
the suit.25 Elsewise stated, plaintiff must be the real party-in-interest. For it is basic in procedural law
that every action must be prosecuted and defended in the name of the real party-in-interest.26
Interest within the meaning of the rule means material interest or an interest in issue to be affected by
the decree or judgment of the case, as distinguished from mere curiosity about the question involved
or a mere incidental interest. One having no material interest to protect cannot invoke the jurisdiction
of the court as plaintiff in an action. When plaintiff is not the real party-in-interest, the case is
dismissible on the ground of lack of cause of action.27
Illuminating on this point is Amor-Catalan v. Court of Appeals,28 where the Court held:
True, under the New Civil Code which is the law in force at the time the respondents were
married, or even in the Family Code, there is no specific provision as to who can file a
petition to declare the nullity of marriage; however, only a party who can
demonstrate "proper interest" can file the same. A petition to declare the nullity of marriage,
like any other actions, must be prosecuted or defended in the name of the real party-in-
interest and must be based on a cause of action. Thus, in Niñal v. Badayog, the Court held
that the children have the personality to file the petition to declare the nullity of marriage of
their deceased father to their stepmother as it affects their successional rights.
xxxx
In fine, petitioner's personality to file the petition to declare the nullity of marriage cannot be
ascertained because of the absence of the divorce decree and the foreign law allowing it.
Hence, a remand of the case to the trial court for reception of additional evidence is
necessary to determine whether respondent Orlando was granted a divorce decree and
whether the foreign law which granted the same allows or restricts remarriage. If it is proved
that a valid divorce decree was obtained and the same did not allow respondent Orlando's
remarriage, then the trial court should declare respondent's marriage as bigamous and
void ab initio but reduced the amount of moral damages from P300,000.00 to P50,000.00
and exemplary damages from P200,000.00 to P25,000.00. On the contrary, if it is proved
that a valid divorce decree was obtained which allowed Orlando to remarry, then the trial
court must dismiss the instant petition to declare nullity of marriage on the ground that
petitioner Felicitas Amor-Catalan lacks legal personality to file the same.29 (Underscoring
supplied)
III. The case must be remanded to determine whether or not petitioner is a real-party-in-
interest to seek the declaration of nullity of the marriage in controversy.
In the case at bench, the records reveal that when Teofilo died intestate in 1992, his only surviving
compulsory heirs are respondent Felicidad and their son, Teofilo II. Under the law on succession,
successional rights are transmitted from the moment of death of the decedent and the compulsory
heirs are called to succeed by operation of law.30
Upon Teofilo's death in 1992, all his property, rights and obligations to the extent of the value of the
inheritance are transmitted to his compulsory heirs. These heirs were respondents Felicidad and
Teofilo II, as the surviving spouse and child, respectively.
Article 887 of the Civil Code outlined who are compulsory heirs, to wit:
23
 (1) Legitimate children and descendants, with respect to their legitimate parents and
ascendants;
(2) In default of the foregoing, legitimate parents and ascendants, with respect to their
legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in Article 287 of the Civil Code.31
Clearly, a brother is not among those considered as compulsory heirs. But although a collateral
relative, such as a brother, does not fall within the ambit of a compulsory heir, he still has a right to
succeed to the estate. Articles 1001 and 1003 of the New Civil Code provide:
ART. 1001. Should brothers and sisters or their children survive with the widow or
widower, the latter shall be entitled to one-half of the inheritance and the brothers and
sisters or their children to the other half.
ART. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving
spouse, the collateral relatives shall succeed to the entire estate of the deceased in
accordance with the following articles. (Underscoring supplied)
Indeed, only the presence of descendants, ascendants or illegitimate children excludes collateral
relatives from succeeding to the estate of the decedent. The presence of legitimate, illegitimate, or
adopted child or children of the deceased precludes succession by collateral relatives.32 Conversely, if
there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral
relatives shall succeed to the entire estate of the decedent.33
If respondent Teofilo II is declared and finally proven not to be the legitimate, illegitimate, or adopted
son of Teofilo, petitioner would then have a personality to seek the nullity of marriage of his deceased
brother with respondent Felicidad. This is so, considering that collateral relatives, like a brother and
sister, acquire successional right over the estate if the decedent dies without issue and without
ascendants in the direct line.
The records reveal that Teofilo was predeceased by his parents. He had no other siblings but
petitioner. Thus, if Teofilo II is finally found and proven to be not a legitimate, illegitimate, or adopted
son of Teofilo, petitioner succeeds to the other half of the estate of his brother, the first half being
allotted to the widow pursuant to Article 1001 of the New Civil Code. This makes petitioner a real-
party-interest to seek the declaration of absolute nullity of marriage of his deceased brother with
respondent Felicidad. If the subject marriage is found to be void ab initio, petitioner succeeds to the
entire estate.
It bears stressing, however, that the legal personality of petitioner to bring the nullity of marriage case
is contingent upon the final declaration that Teofilo II is not a legitimate, adopted, or illegitimate son of
Teofilo.
If Teofilo II is proven to be a legitimate, illegitimate, or legally adopted son of Teofilo, then petitioner
has no legal personality to ask for the nullity of marriage of his deceased brother and respondent
Felicidad. This is based on the ground that he has no successional right to be protected, hence, does
not have proper interest. For although the marriage in controversy may be found to be void from the
beginning, still, petitioner would not inherit. This is because the presence of descendant,
illegitimate,34 or even an adopted child35 excludes the collateral relatives from inheriting from the
decedent.
Thus, the Court finds that a remand of the case for trial on the merits to determine the validity or
nullity of the subject marriage is called for. But the RTC is strictly instructed to dismiss the nullity
of marriage case for lack of cause of action if it is proven by evidence that Teofilo II is a
legitimate, illegitimate, or legally adopted son of Teofilo Carlos, the deceased brother of
petitioner.
IV. Remand of the case regarding the question of filiation of respondent Teofilo II is proper and
in order. There is a need to vacate the disposition of the trial court as to the other causes of action
before it.
Petitioner did not assign as error or interpose as issue the ruling of the CA on the remand of the case
concerning the filiation of respondent Teofilo II. This notwithstanding, We should not leave the matter
hanging in limbo.
This Court has the authority to review matters not specifically raised or assigned as error by the
parties, if their consideration is necessary in arriving at a just resolution of the case.36
We agree with the CA that without trial on the merits having been conducted in the case, petitioner's
bare allegation that respondent Teofilo II was adopted from an indigent couple is insufficient to
support a total forfeiture of rights arising from his putative filiation. However, We are not inclined to
support its pronouncement that the declaration of respondent Felicidad as to the illegitimate filiation of
respondent Teofilo II is more credible. For the guidance of the appellate court, such declaration of
respondent Felicidad should not be afforded credence. We remind the CA of the guaranty provided by
Article 167 of the Family Code to protect the status of legitimacy of a child, to wit:
ARTICLE 167. The child shall be considered legitimate although the mother may have
declared against its legitimacy or may have been sentenced as an adulteress. (Underscoring
supplied)
It is stressed that Felicidad's declaration against the legitimate status of Teofilo II is the very act that is
proscribed by Article 167 of the Family Code. The language of the law is unmistakable. An assertion
by the mother against the legitimacy of her child cannot affect the legitimacy of a child born or
conceived within a valid marriage.37
24
Finally, the disposition of the trial court in favor of petitioner for causes of action concerning
reconveyance, recovery of property, and sum of money must be vacated. This has to be so, as said
disposition was made on the basis of its finding that the marriage in controversy was null and void ab
initio.

WHEREFORE, the appealed Decision is MODIFIED as follows:

1. The case is REMANDED to the Regional Trial Court in regard to the action on the status
and filiation of respondent Teofilo Carlos II and the validity or nullity of marriage between
respondent Felicidad Sandoval and the late Teofilo Carlos;

2. If Teofilo Carlos II is proven to be the legitimate, or illegitimate, or legally adopted son of

the late Teofilo Carlos, the RTC is strictly INSTRUCTED to DISMISS the action for nullity of
marriage for lack of cause of action;

3. The disposition of the RTC in Nos. 1 to 8 of the fallo of its decision is VACATED AND SET
ASIDE.

The Regional Trial Court is ORDERED to conduct trial on the merits with dispatch and to give this
case priority in its calendar.

No costs.

SO ORDERED.

25

7. Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 157547 February 23, 2011
HEIRS OF EDUARDO SIMON, Petitioners,
vs.
ELVIN* CHAN AND THE COURT OF APPEALS, Respondent.
DECISION
BERSAMIN, J.:
There is no independent civil action to recover the civil liability arising from the issuance of an
unfunded check prohibited and punished under Batas Pambansa Bilang 22 (BP 22).
Antecedents
On July 11, 1997, the Office of the City Prosecutor of Manila filed in the Metropolitan Trial Court of
Manila (MeTC) an information charging the late Eduardo Simon (Simon) with a violation of BP 22,
docketed as Criminal Case No. 275381 entitled People v. Eduardo Simon. The accusatory portion
reads:
That sometime in December 1996 in the City of Manila, Philippines, the said accused, did then and
there willfully, unlawfully and feloniously make or draw and issue to Elvin Chan to apply on account or
for value Landbank Check No. 0007280 dated December 26, 1996 payable to cash in the amount of
₱336,000.00 said accused well knowing that at the time of issue she/he/they did not have sufficient
funds in or credit with the drawee bank for payment of such check in full upon its presentment, which
check when presented for payment within ninety (90) days from the date thereof was subsequently
dishonored by the drawee bank for Account Closed and despite receipt of notice of such dishonor,
said accused failed to pay said Elvin Chan the amount of the check or to make arrangement for full
payment of the same within five (5) banking days after receiving said notice.
CONTRARY TO LAW. 1
More than three years later, or on August 3, 2000, respondent Elvin Chan commenced in the MeTC in
Pasay City a civil action for the collection of the principal amount of ₱336,000.00, coupled with an
application for a writ of preliminary attachment (docketed as Civil Case No. 915-00).2 He alleged in
his complaint the following:
xxx
2. Sometime in December 1996 defendant employing fraud, deceit, and misrepresentation
encashed a check dated December 26, 1996 in the amount of ₱336,000.00 to the plaintiff
assuring the latter that the check is duly funded and that he had an existing account with the
Land Bank of the Philippines, xerox copy of the said check is hereto attached as Annex "A";
3. However, when said check was presented for payment the same was dishonored on the
ground that the account of the defendant with the Land Bank of the Philippines has been
closed contrary to his representation that he has an existing account with the said bank and
that the said check was duly funded and will be honored when presented for payment;
4. Demands had been made to the defendant for him to make good the payment of the
value of the check, xerox copy of the letter of demand is hereto attached as Annex "B", but
despite such demand defendant refused and continues to refuse to comply with plaintiff’s
valid demand;
5. Due to the unlawful failure of the defendant to comply with the plaintiff’s valid demands,
plaintiff has been compelled to retain the services of counsel for which he agreed to pay as
reasonable attorney’s fees the amount of ₱50,000.00 plus additional amount of ₱2,000.00
per appearance.
ALLEGATION IN SUPPORT OF PRAYER
FOR PRELIMINARY ATTACHMENT
6. The defendant as previously alleged has been guilty of fraud in contracting the obligation
upon which this action is brought and that there is no sufficient security for the claims sought
in this action which fraud consist in the misrepresentation by the defendant that he has an
existing account and sufficient funds to cover the check when in fact his account was
already closed at the time he issued a check;
7. That the plaintiff has a sufficient cause of action and this action is one which falls under
Section 1, sub-paragraph (d), Rule 57 of the Revised Rules of Court of the Philippines and
the amount due the plaintiff is as much as the sum for which the plaintiff seeks the writ of
preliminary attachment;
8. That the plaintiff is willing and able to post a bond conditioned upon the payment of
damages should it be finally found out that the plaintiff is not entitled to the issuance of a writ
of preliminary attachment.3
On August 9, 2000, the MeTC in Pasay City issued a writ of preliminary attachment, which was
implemented on August 17, 2000 through the sheriff attaching a Nissan vehicle of Simon.4
On August 17, 2000, Simon filed an urgent motion to dismiss with application to charge plaintiff’s
attachment bond for damages,5 pertinently averring:
26
xxx
On the ground of litis pendentia, that is, as a consequence of the pendency of another action between
the instant parties for the same cause before the Metropolitan Trial Court of Manila, Branch X (10)
entitled "People of the Philippines vs. Eduardo Simon", docketed thereat as Criminal Case No.
275381-CR, the instant action is dismissable under Section 1, (e), Rule 16, 1997 Rules of Civil
Procedure, xxx
xxx
While the instant case is civil in nature and character as contradistinguished from the said Criminal
Case No. 915-00 in the Metropolitan Trial Court of Manila, Branch X (10), the basis of the instant civil
action is the herein plaintiff’s criminal complaint against defendant arising from a charge of violation of
Batas Pambansa Blg. 22 as a consequence of the alleged dishonor in plaintiff’s hands upon
presentment for payment with drawee bank a Land Bank Check No. 0007280 dated December 26,
1996 in the amount of ₱336,000- drawn allegedly issued to plaintiff by defendant who is the accused
in said case, a photocopy of the Criminal information filed by the Assistant City Prosecutor of Manila
on June 11, 1997 hereto attached and made integral part hereof as Annex "1".
It is our understanding of the law and the rules, that, "when a criminal action is instituted, the civil
action for recovery of civil liability arising from the offense charged is impliedly instituted with the
criminal action, unless the offended party expressly waives the civil action or reserves his right to
institute it separately xxx.
On August 29, 2000, Chan opposed Simon’s urgent motion to dismiss with application to charge
plaintiff’s attachment bond for damages, stating:
1. The sole ground upon which defendant seeks to dismiss plaintiff’s complaint is the alleged
pendency of another action between the same parties for the same cause, contending
among others that the pendency of Criminal Case No. 275381-CR entitled "People of the
Philippines vs. Eduardo Simon" renders this case dismissable;
2. The defendant further contends that under Section 1, Rule 111 of the Revised Rules of
Court, the filing of the criminal action, the civil action for recovery of civil liability arising from
the offense charged is impliedly instituted with the criminal action which the plaintiff does not
contest; however, it is the submission of the plaintiff that an implied reservation of the right to
file a civil action has already been made, first, by the fact that the information for violation of
B.P. 22 in Criminal Case No. 2753841 does not at all make any allegation of damages
suffered by the plaintiff nor is there any claim for recovery of damages; on top of this the
plaintiff as private complainant in the criminal case, during the presentation of the
prosecution evidence was not represented at all by a private prosecutor such that no
evidence has been adduced by the prosecution on the criminal case to prove damages; all
of these we respectfully submit demonstrate an effective implied reservation of the right of
the plaintiff to file a separate civil action for damages;
3. The defendant relies on Section 3 sub-paragraph (a) Rule 111 of the Revised Rules of
Court which mandates that after a criminal action has been commenced the civil action
cannot be instituted until final judgment has been rendered in the criminal action; however,
the defendant overlooks and conveniently failed to consider that under Section 2, Rule 111
which provides as follows:
In the cases provided for in Articles 31, 32, 33, 34 and 2177 of the Civil Code of the
Philippines, an independent civil action entirely separate and distinct from the criminal
action, may be brought by the injured party during the pendency of criminal case provided
the right is reserved as required in the preceding section. Such civil action shall proceed
independently of the criminal prosecution, and shall require only a preponderance of
evidence.
In as much as the case is one that falls under Art. 33 of the Civil Code of the Philippines as it
is based on fraud, this action therefore may be prosecuted independently of the criminal
action;
4. In fact we would even venture to state that even without any reservation at all of the right
to file a separate civil action still the plaintiff is authorized to file this instant case because the
plaintiff seeks to enforce an obligation which the defendant owes to the plaintiff by virtue of
the negotiable instruments law. The plaintiff in this case sued the defendant to enforce his
liability as drawer in favor of the plaintiff as payee of the check. Assuming the allegation of
the defendant of the alleged circumstances relative to the issuance of the check, still when
he delivered the check payable to bearer to that certain Pedro Domingo, as it was payable to
cash, the same may be negotiated by delivery by who ever was the bearer of the check and
such negotiation was valid and effective against the drawer;
5. Indeed, assuming as true the allegations of the defendant regarding the circumstances
relative to the issuance of the check it would be entirely impossible for the plaintiff to have
been aware that such check was intended only for a definite person and was not negotiable
considering that the said check was payable to bearer and was not even crossed;
6. We contend that what cannot be prosecuted separate and apart from the criminal case
without a reservation is a civil action arising from the criminal offense charged. However, in
this instant case since the liability of the defendant are imposed and the rights of the plaintiff
are created by the negotiable instruments law, even without any reservation at all this instant
action may still be prosecuted;
7. Having this shown, the merits of plaintiff’s complaint the application for damages against
the bond is totally without any legal support and perforce should be dismissed outright.6
On October 23, 2000, the MeTC in Pasay City granted Simon’s urgent motion to dismiss with
application to charge plaintiff’s attachment bond for damages,7 dismissing the complaint of Chan
because:
27
xxx
After study of the arguments of the parties, the court resolves to GRANT the Motion to Dismiss and
the application to charge plaintiff’s bond for damages.
For "litis pendentia" to be a ground for the dismissal of an action, the following requisites must concur:
(a) identity of parties or at least such as to represent the same interest in both actions; (b) identity of
rights asserted and relief prayed for, the relief being founded on the same acts; and (c) the identity in
the two (2) cases should be such that the judgment, which may be rendered in one would, regardless
of which party is successful, amount to res judicata in the other. xxx
A close perusal of the herein complaint denominated as "Sum of Money" and the criminal case for
violation of BP Blg. 22 would readily show that the parties are not only identical but also the cause of
action being asserted, which is the recovery of the value of Landbank Check No. 0007280 in the
amount of ₱336,000.00. In both civil and criminal cases, the rights asserted and relief prayed for, the
reliefs being founded on the same facts, are identical.
Plaintiff’s claim that there is an effective implied waiver of his right to pursue this civil case owing to
the fact that there was no allegation of damages in BP Blg. 22 case and that there was no private
prosecutor during the presentation of prosecution evidence is unmeritorious. It is basic that when a
complaint or criminal Information is filed, even without any allegation of damages and the intention to
prove and claim them, the offended party has the right to prove and claim for them, unless a waiver or
reservation is made or unless in the meantime, the offended party has instituted a separate civil
action. xxx The over-all import of the said provision conveys that the waiver which includes indemnity
under the Revised Penal Code, and damages arising under Articles 32, 33, and 34 of the Civil Code
must be both clear and express. And this must be logically so as the primordial objective of the Rule
is to prevent the offended party from recovering damages twice for the same act or omission of the
accused.
Indeed, the evidence discloses that the plaintiff did not waive or made a reservation as to his right to
pursue the civil branch of the criminal case for violation of BP Blg. 22 against the defendant herein. To
the considered view of this court, the filing of the instant complaint for sum of money is indeed legally
barred. The right to institute a separate civil action shall be made before the prosecution starts to
present its evidence and under circumstances affording the offended party a reasonable opportunity
to make such reservation. xxx
Even assuming the correctness of the plaintiff’s submission that the herein case for sum of money is
one based on fraud and hence falling under Article 33 of the Civil Code, still prior reservation is
required by the Rules, to wit:
"In the cases provided for in Articles 31, 32, 33, 34 and 2177 of the Civil Code of the Philippines, an
independent civil action entirely separate and distinct from the criminal action, may be brought by the
injured party during the pendency of criminal case provided the right is reserved as required in the
preceding section. Such civil action shall proceed independently of the criminal prosecution, and shall
require only a preponderance of evidence."
xxx
WHEREFORE, premises considered, the court resolves to:
1. Dismiss the instant complaint on the ground of "litis pendentia";
2. Dissolve/Lift the Writ of Attachment issued by this court on August 14, 2000;
3. Charge the plaintiff’s bond the amount of ₱336,000.00 in favor of the defendant for the
damages sustained by the latter by virtue of the implementation of the writ of attachment;
4. Direct the Branch Sheriff of this Court to RESTORE with utmost dispatch to the
defendant’s physical possession the vehicle seized from him on August 16, 2000; and
5. Direct the plaintiff to pay the defendant the sum of ₱5,000.00 by way of attorney’s fees.
SO ORDERED.
Chan’s motion for reconsideration was denied on December 20, 2000,8 viz:
Considering that the plaintiff’s arguments appear to be a mere repetition of his previous submissions,
and which submissions this court have already passed upon; and taking into account the
inapplicability of the ratio decidendi in the Tactaquin vs. Palileo case which the plaintiff cited as clearly
in that case, the plaintiff therein expressly made a reservation to file a separate civil action, the Motion
for Reconsideration is DENIED for lack of merit.
SO ORDERED.
On July 31, 2001, the Regional Trial Court (RTC) in Pasay City upheld the dismissal of Chan’s
complaint, disposing:9
WHEREFORE, finding no error in the appealed decision, the same is hereby AFFIRMED in toto.
SO ORDERED.
On September 26, 2001, Chan appealed to the Court of Appeals (CA) by petition for
review,10 challenging the propriety of the dismissal of his complaint on the ground of litis pendentia.
In his comment, 11 Simon countered that Chan was guilty of bad faith and malice in prosecuting his
alleged civil claim twice in a manner that caused him (Simon) utter embarrassment and emotional
sufferings; and that the dismissal of the civil case because of the valid ground of litis pendentia based
on Section 1 (e), Rule 16 of the 1997 Rules of Civil Procedure was warranted.
28
On June 25, 2002, the CA promulgated its assailed decision,12 overturning the RTC, viz:
xxx
As a general rule, an offense causes two (2) classes of injuries. The first is the social injury produced
by the criminal act which is sought to be repaired through the imposition of the corresponding penalty,
and the second is the personal injury caused to the victim of the crime which injury is sought to be
compensated through indemnity which is also civil in nature. Thus, "every person criminally liable for
a felony is also civilly liable."
The offended party may prove the civil liability of an accused arising from the commission of the
offense in the criminal case since the civil action is either deemed instituted with the criminal action or
is separately instituted.
Rule 111, Section 1 of the Revised Rules of Criminal Procedure, which became effective on
December 1, 2000, provides that:
(a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the
offense charged shall be deemed instituted with the criminal action unless the offended party waives
the civil action, reserves the right to institute it separately or institute the civil action prior to the
criminal action.
Rule 111, Section 2 further states:
After the criminal action has been commenced, the separate civil action arising therefrom cannot be
instituted until final judgment has been entered in the criminal action.
However, with respect to civil actions for recovery of civil liability under Articles 32, 33, 34 and 2176 of
the Civil Code arising from the same act or omission, the rule has been changed.
In DMPI Employees Credit Association vs. Velez, the Supreme Court pronounced that only the civil
liability arising from the offense charged is deemed instituted with the criminal action unless the
offended party waives the civil action, reserves his right to institute it separately, or institutes the civil
action prior to the criminal action. Speaking through Justice Pardo, the Supreme Court held:
"There is no more need for a reservation of the right to file the independent civil action under Articles
32, 33, 34 and 2176 of the Civil Code of the Philippines. The reservation and waiver referred to refers
only to the civil action for the recovery of the civil liability arising from the offense charged. This does
not include recovery of civil liability under Articles 32, 33, 34, and 2176 of the Civil Code of the
Philippines arising from the same act or omission which may be prosecuted separately without a
reservation".
Rule 111, Section 3 reads:
Sec. 3. When civil action may proceed independently. In the cases provided in Articles 32, 33, 34, and
2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended
party. It shall proceed independently of the criminal action and shall require only a preponderance of
evidence. In no case, however, may the offended party recover damages twice for the same act or
omission charged in the criminal action.
The changes in the Revised Rules on Criminal Procedure pertaining to independent civil actions
which became effective on December 1, 2000 are applicable to this case.
Procedural laws may be given retroactive effect to actions pending and undetermined at the time of
their passage. There are no vested rights in the rules of procedure. xxx
Thus, Civil Case No. CV-94-124, an independent civil action for damages on account of the fraud
committed against respondent Villegas under Article 33 of the Civil Code, may proceed independently
even if there was no reservation as to its filing."
It must be pointed that the abovecited case is similar with the instant suit. The complaint was also
brought on allegation of fraud under Article 33 of the Civil Code and committed by the respondent in
the issuance of the check which later bounced. It was filed before the trial court, despite the pendency
of the criminal case for violation of BP 22 against the respondent. While it may be true that the
changes in the Revised Rules on Criminal Procedure pertaining to independent civil action became
effective on December 1, 2000, the same may be given retroactive application and may be made to
apply to the case at bench, since procedural rules may be given retroactive application. There are no
vested rights in the rules of procedure.
In view of the ruling on the first assigned error, it is therefore an error to adjudge damages in favor of
the petitioner.
WHEREFORE, the petition is hereby GRANTED. The Decision dated July 13, 2001 rendered by the
Regional Trial Court of Pasay City, Branch 108 affirming the dismissal of the complaint filed by
petitioner is hereby REVERSED and SET ASIDE. The case is hereby REMANDED to the trial court
for further proceedings.
SO ORDERED.
On March 14, 2003, the CA denied Simon’s motion for reconsideration.13
Hence, this appeal, in which the petitioners submit that the CA erroneously premised its decision on
the assessment that the civil case was an independent civil action under Articles 32, 33, 34, and 2176
of the Civil Code; that the CA’s reliance on the ruling in DMPI Employees Credit Cooperative Inc. v.
Velez14 stretched the meaning and intent of the ruling, and was contrary to Sections 1 and 2 of Rule
111 of the Rules of Criminal Procedure; that this case was a simple collection suit for a sum of money,
precluding the application of Section 3 of Rule 111 of the Rules of Criminal Procedure.15
29
In his comment,16 Chan counters that the petition for review should be denied because the petitioners
used the wrong mode of appeal; that his cause of action, being based on fraud, was an independent
civil action; and that the appearance of a private prosecutor in the criminal case did not preclude the
filing of his separate civil action.
Issue
The lone issue is whether or not Chan’s civil action to recover the amount of the unfunded check
(Civil Case No. 915-00) was an independent civil action.
Ruling
The petition is meritorious.
A the criminal action unless the offended party waives the civil action, reserves the right to institute it
Applicable Law and Jurisprudence on the
Propriety of filing a separate civil action based on BP 22
The Supreme Court has settled the issue of whether or not a violation of BP 22 can give rise to civil
liability in Banal v. Judge Tadeo, Jr.,17 holding:
xxx
Article 20 of the New Civil Code provides:
Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify
the latter for the same.
Regardless, therefore, of whether or not a special law so provides, indemnification of the offended
party may be had on account of the damage, loss or injury directly suffered as a consequence of the
wrongful act of another. The indemnity which a person is sentenced to pay forms an integral part of
the penalty imposed by law for the commission of a crime (Quemel v. Court of Appeals, 22 SCRA 44,
citing Bagtas v. Director of Prisons, 84 Phil 692). Every crime gives rise to a penal or criminal action
for the punishment of the guilty party, and also to civil action for the restitution of the thing, repair of
the damage, and indemnification for the losses (United States v. Bernardo, 19 Phil 265).
xxx
Civil liability to the offended party cannot thus be denied. The payee of the check is entitled to receive
the payment of money for which the worthless check was issued. Having been caused the damage,
she is entitled to recompense.
Surely, it could not have been the intendment of the framers of Batas Pambansa Blg. 22 to leave the
offended private party defrauded and empty-handed by excluding the civil liability of the offender,
giving her only the remedy, which in many cases results in a Pyrrhic victory, of having to file a
separate civil suit. To do so may leave the offended party unable to recover even the face value of the
check due her, thereby unjustly enriching the errant drawer at the expense of the payee. The
protection which the law seeks to provide would, therefore, be brought to naught.
xxx
However, there is no independent civil action to recover the value of a bouncing check issued in
contravention of BP 22. This is clear from Rule 111 of the Rules of Court, effective December 1, 2000,
which relevantly provides:
Section 1. Institution of criminal and civil actions. - (a) When a criminal action is instituted, the civil
action for the recovery of civil liability arising from the offense charged shall be deemed instituted with
separately or institutes the civil action prior to the criminal action.
The reservation of the right to institute separately the civil action shall be made before the prosecution
starts presenting its evidence and under circumstances affording the offended party a reasonable
opportunity to make such reservation.
When the offended party seeks to enforce civil liability against the accused by way of moral, nominal,
temperate, or exemplary damages without specifying the amount thereof in the complaint or
information, the filing fees therefor shall constitute a first lien on the judgment awarding such
damages.
Where the amount of damages, other than actual, is specified in the complaint or information, the
corresponding filing fees shall be paid by the offended party upon the filing thereof in court.
Except as otherwise provided in these Rules, no filing fees shall be required for actual damages.
No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal
case, but any cause of action which could have been the subject thereof may be litigated in a
separate civil action. (1a)
(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the
corresponding civil action. No reservation to file such civil action separately shall be allowed.18
Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing
fees based on the amount of the check involved, which shall be considered as the actual damages
claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal,
temperate or exemplary damages, the offended party shall pay the filing fees based on the amounts
alleged therein. If the amounts are not so alleged but any of these damages are subsequently
30
awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the
judgment.
Where the civil action has been filed separately and trial thereof has not yet commenced, it may be
consolidated with the criminal action upon application with the court trying the latter case. If the
application is granted, the trial of both actions shall proceed in accordance with section 2 of the Rule
governing consolidation of the civil and criminal actions.
Section 3. When civil action may proceed independently. – In the cases provided in Articles 32, 33, 34
and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the
offended party. It shall proceed independently of the criminal action and shall require only a
preponderance of evidence. In no case, however, may the offended party recover damages twice for
the same act or omission charged in the criminal action.
The aforequoted provisions of the Rules of Court, even if not yet in effect when Chan commenced
Civil Case No. 915-00 on August 3, 2000, are nonetheless applicable. It is axiomatic that the
retroactive application of procedural laws does not violate any right of a person who may feel
adversely affected, nor is it constitutionally objectionable. The reason is simply that, as a general rule,
no vested right may attach to, or arise from, procedural laws.19 Any new rules may validly be made to
apply to cases pending at the time of their promulgation, considering that no party to an action has a
vested right in the rules of procedure,20 except that in criminal cases, the changes do not retroactively
apply if they permit or require a lesser quantum of evidence to convict than what is required at the
time of the commission of the offenses, because such retroactivity would be unconstitutional for
being ex post factounder the Constitution.21
Moreover, the application of the rule would not be precluded by the violation of any assumed vested
right, because the new rule was adopted from Supreme Court Circular 57-97 that took effect on
November 1, 1997.
Supreme Court Circular 57-97 states:
Any provision of law or Rules of Court to the contrary notwithstanding, the following rules and
guidelines shall henceforth be observed in the filing and prosecution of all criminal cases under Batas
Pambansa Blg. 22 which penalizes the making or drawing and issuance of a check without funds or
credit:
1. The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to
necessarily include the corresponding civil action, and no reservation to file such civil action
separately shall be allowed or recognized.22
2. Upon the filing of the aforesaid joint criminal and civil actions, the offended party shall pay
in full the filing fees based upon the amount of the check involved which shall be considered
as the actual damages claimed, in accordance with the schedule of fees in Section 7 (a) and
Section 8 (a), Rule 141 of the Rules of Court as last amended by Administrative Circular No.
11-94 effective August 1, 1994. Where the offended party further seeks to enforce against
the accused civil liability by way of liquidated, moral, nominal, temperate or exemplary
damages, he shall pay the corresponding filing fees therefor based on the amounts thereof
as alleged either in the complaint or information. If not so alleged but any of these damages
are subsequently awarded by the court, the amount of such fees shall constitute a first lien
on the judgment.
3. Where the civil action has heretofore been filed separately and trial thereof has not yet
commenced, it may be consolidated with the criminal action upon application with the court
trying the latter case. If the application is granted, the trial of both actions shall proceed in
accordance with the pertinent procedure outlined in Section 2 (a) of Rule 111 governing the
proceedings in the actions as thus consolidated.
4. This Circular shall be published in two (2) newspapers of general circulation and shall
take effect on November 1, 1997.
The reasons for issuing Circular 57-97 were amply explained in Hyatt Industrial Manufacturing
Corporation v. Asia Dynamic Electrix Corporation,23 thus:
xxx
We agree with the ruling of the Court of Appeals that upon filing of the criminal cases for violation of
B.P. 22, the civil action for the recovery of the amount of the checks was also impliedly instituted
under Section 1(b) of Rule 111 of the 2000 Rules on Criminal Procedure. Under the present revised
Rules, the criminal action for violation of B.P. 22 shall be deemed to include the corresponding civil
action. The reservation to file a separate civil action is no longer needed. The Rules provide:
Section 1. Institution of criminal and civil actions. —
(a) x x x
(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include
the corresponding civil action. No reservation to file such civil action separately shall be
allowed.
Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing
fees based on the amount of the check involved, which shall be considered as the actual damages
claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal,
temperate or exemplary damages, the offended party shall pay additional filing fees based on the
amounts alleged therein. If the amounts are not so alleged but any of these damages are
subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a
first lien on the judgment.
Where the civil action has been filed separately and trial thereof has not yet commenced, it may be
consolidated with the criminal action upon application with the court trying the latter case. If the
31
application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule
governing consolidation of the civil and criminal actions.1avvphi1
The foregoing rule was adopted from Circular No. 57-97 of this Court. It specifically states that the
criminal action for violation of B.P. 22 shall be deemed to include the corresponding civil action. It also
requires the complainant to pay in full the filing fees based on the amount of the check involved.
Generally, no filing fees are required for criminal cases, but because of the inclusion of the civil action
in complaints for violation of B.P. 22, the Rules require the payment of docket fees upon the filing of
the complaint. This rule was enacted to help declog court dockets which are filled with B.P. 22 cases
as creditors actually use the courts as collectors. Because ordinarily no filing fee is charged in
criminal cases for actual damages, the payee uses the intimidating effect of a criminal charge to
collect his credit gratis and sometimes, upon being paid, the trial court is not even informed thereof.
The inclusion of the civil action in the criminal case is expected to significantly lower the number of
cases filed before the courts for collection based on dishonored checks. It is also expected to
expedite the disposition of these cases. Instead of instituting two separate cases, one for criminal and
another for civil, only a single suit shall be filed and tried. It should be stressed that the policy laid
down by the Rules is to discourage the separate filing of the civil action. The Rules even prohibit the
reservation of a separate civil action, which means that one can no longer file a separate civil case
after the criminal complaint is filed in court. The only instance when separate proceedings are allowed
is when the civil action is filed ahead of the criminal case. Even then, the Rules encourage the
consolidation of the civil and criminal cases. We have previously observed that a separate civil action
for the purpose of recovering the amount of the dishonored checks would only prove to be costly,
burdensome and time-consuming for both parties and would further delay the final disposition of the
case. This multiplicity of suits must be avoided. Where petitioners’ rights may be fully adjudicated in
the proceedings before the trial court, resort to a separate action to recover civil liability is clearly
unwarranted. In view of this special rule governing actions for violation of B.P. 22, Article 31 of the
Civil Code cited by the trial court will not apply to the case at bar.24
The CA’s reliance on DMPI Employees Credit Association v. Velez25 to give due course to the civil
action of Chan independently and separately of Criminal Case No. 275381 was unwarranted. DMPI
Employees, which involved a prosecution for estafa, is not on all fours with this case, which is a
prosecution for a violation of BP 22. Although the Court has ruled that the issuance of a bouncing
check may result in two separate and distinct crimes of estafa and violation of BP 22,26 the
procedures for the recovery of the civil liabilities arising from these two distinct crimes are different
and non-interchangeable. In prosecutions of estafa, the offended party may opt to reserve his right to
file a separate civil action, or may institute an independent action based on fraud pursuant to Article
33 of the Civil Code,27 as DMPI Employees has allowed. In prosecutions of violations of BP 22,
however, the Court has adopted a policy to prohibit the reservation or institution of a separate civil
action to claim the civil liability arising from the issuance of the bouncing check upon the reasons
delineated in Hyatt Industrial Manufacturing Corporation, supra.
To repeat, Chan’s separate civil action to recover the amount of the check involved in the prosecution
for the violation of BP 22 could not be independently maintained under both Supreme Court Circular
57-97 and the aforequoted provisions of Rule 111 of the Rules of Court, notwithstanding the
allegations of fraud and deceit.
B
Aptness of the dismissal of the civil action
on the ground of litis pendentia
Did the pendency of the civil action in the MeTC in Manila (as the civil aspect in Criminal Case No.
275381) bar the filing of Civil Case No. 915-00 in the MeTC in Pasay City on the ground of litis
pendentia?
For litis pendentia to be successfully invoked as a bar to an action, the concurrence of the following
requisites is necessary, namely: (a) there must be identity of parties or at least such as represent the
same interest in both actions; (b) there must be identity of rights asserted and reliefs prayed for, the
reliefs being founded on the same facts; and, (c) the identity in the two cases should be such that the
judgment that may be rendered in one would, regardless of which party is successful, amount to res
judicata in respect of the other. Absent the first two requisites, the possibility of the existence of the
third becomes nil.28
A perusal of Civil Case No. 01-0033 and Criminal Case No. 275381 ineluctably shows that all the
elements of litis pendentia are attendant. First of all, the parties in the civil action involved in Criminal
Case No. 275381 and in Civil Case No. 915-00, that is, Chan and Simon, are the same. Secondly, the
information in Criminal Case No. 275381 and the complaint in Civil Case No. 915-00 both alleged that
Simon had issued Landbank Check No. 0007280 worth ₱336,000.00 payable to "cash," thereby
indicating that the rights asserted and the reliefs prayed for, as well as the facts upon which the reliefs
sought were founded, were identical in all respects. And, thirdly, any judgment rendered in one case
would necessarily bar the other by res judicata; otherwise, Chan would be recovering twice upon the
same claim.
It is clear, therefore, that the MeTC in Pasay City properly dismissed Civil Case No. 915-00 on the
ground of litis pendentia through its decision dated October 23, 2000; and that the RTC in Pasay City
did not err in affirming the MeTC.
Wherefore, we grant the petition for review on certiorari, and, accordingly, we reverse and set aside
the decision promulgated by the Court of Appeals on June 25, 2002. We reinstate the decision
rendered on October 23, 2000 by the Metropolitan Trial Court, Branch 45, in Pasay City.
Costs of suit to be paid by the respondent.
SO ORDERED.
32

8. G.R. No. 189649, April 20, 2015
ADORACION CAROLINO (SPOUSE AND IN SUBSTITUTION OF THE DECEASED
JEREMIAS A. CAROLINO), Petitioner, v. GEN. GENEROSO SENGA, AS CHIEF OF
STAFF OF THE ARMED FORCES OF THE PHILIPPINES (AFP); BRIG. GEN.
FERNANDO ZABAT, AS CHIEF OF THE AFP FINANCE CENTER; COMMO.
REYNALDO BASILIO, AS CHIEF OF THE AFP-GHQ MANAGEMENT AND FISCAL
OFFICE; AND COMMO. EMILIO MARAYAG, PENSION AND GRATUITY OFFICER,
PENSION AND GRATUITY MANAGEMENT CENTER, AFP FINANCE
CENTER, Respondent.
D E C I S I O N PERALTA, J.:
Before us is a petition for review under Rule 45 seeking to reverse and set aside the
Decision1 dated May 25, 2009 of the Court of Appeals (CA) in CA-G.R. SP No. 103502
and the Resolution2 dated September 10, 2009 denying reconsideration thereof.
The factual and legal antecedents are as follows:
On December 1, 1976, Jeremias A. Carolino, petitioner's husband, retired 3 from the
Armed Forces of the Philippines (AFP) with the rank of Colonel under General Order No.
1208 dated November 29, 1976, pursuant to the provisions of Sections 1(A) and 10 of
Republic Act (RA) No. 340,4 as amended. He started receiving his monthly retirement
pay in the amount of P18,315.00 in December 1976 until the same was withheld by
respondents in March 2005. On June 3, 2005, Jeremias wrote a letter 5 addressed to the
AFP Chief of Staff asking for the reasons of the withholding of his retirement pay. In a
letter reply,6 Myrna F. Villaruz, LTC (FS) PA, Pension and Gratuity Officer of the AFP
Finance Center, informed Jeremias that his loss of Filipino citizenship caused the deletion
of his name in the alpha list of the AFP Pensioners' Payroll effective March 5, 2005; and
that he could avail of re-entitlement to his retirement benefits and the restoration of his
name in the AFP Pensioners' Masterlist Payroll by complying with the requirements
prescribed under RA No. 9225, or the Dual Citizenship Act.
It appeared that the termination of Jeremias' pension was done pursuant to Disposition
Form7 dated October 29, 2004, which was approved by the Chief of Staff and made
effective in January 2005. In the said Disposition Form, the AFP Judge Advocate General
opined that under the provisions of Sections 4, 5, and 6 of RA No. 340, retired military
personnel are disqualified from receiving pension benefits once incapable to render
military service as a result of his having sworn allegiance to a foreign country. It was
also mentioned that termination of retirement benefits of pensioner of the AFP could be
done pursuant to the provisions of Presidential Decree (PD) No. 1638 8 which provides
that the name of a retiree who loses his Filipino citizenship shall be removed from the
retired list and his retirement benefits terminated upon such loss. It being in consonance
with the policy consideration that all retirement laws inconsistent with the provisions of
PD No. 1638 are repealed and modified accordingly.
On August 24, 2006, Jeremias filed with the Regional Trial Court (RTC) of Quezon City, a
Petition for Mandamus9 against Gen. Generoso Senga, as Chief of Staff of the AFP, Brig.
Gen. Fernando Zabat, as Chief of the AFP Finance Center, Comm. Reynaldo Basilio, as
Chief of the AFP-GHQ Management and Fiscal Office, and Comm. Emilio Marayag,
Pension and Gratuity Management Officer, Pension and Gratuity Management Center,
AFP Finance Center, seeking reinstatement of his name in the list of the AFP retired
officers, resumption of payment of his retirement benefits under RA No. 340, and the
reimbursement of all his retirement pay and benefits which accrued from March 5, 2005
up to the time his name is reinstated and, thereafter, with claim for damages and
attorney's fees. The case was docketed as Civil Case No. Q-06-58686, and raffled off to
Branch 220.
On February 26, 2007, the RTC rendered its Decision 10 granting the petition for
mandamus, the dispositive portion of which reads:chanroblesvirtuallawlibrary
WHEREFORE, judgment is hereby rendered ordering General Hermogenes Esperon, Jr.,
as Chief of Staff of the AFP, Brigadier General Fernando Zabat, as the Commanding
Officer of the AFP Finance Center, Commodore Reynaldo Basilio, as Chief of the AFP-
GFIQ Management and Fiscal Office, and Captain Theresa M. Nicdao, as Pension and
Gratuity Officer of the Pension and Gratuity Management Center, or any of their
respective successors and those taking instructions from them as agents or
subordinates, to:chanroblesvirtuallawlibrary
a. immediately reinstate the name of petitioner in the list of retired
AFP Officers, and to resume payment of his retirement benefits
under RA 340; and
b. release to [petitioner] all retirement benefits due him under RA
340 which accrued to him from March 2005 continuously up to
the time his name is reinstated in the list of AFP retired
officers.11
The RTC found that the issue for resolution is the applicability of RA No. 340 and PD No.
1638 upon Jeremias' retirement benefits. It found that he retired as a commissioned
officer of the AFP in 1976; thus, RANo. 340 is the law applicable in determining his
entitlement to his retirement benefits and not PD No. 1638 which was issued only in
1979. Article 4 of the Civil Code provides that "laws shall have no retroactive effect
unless the contrary is provided." PD No. 1638 does not provide for such retroactive
application. Also, it could not have been the intendment of PD No. 1638 to deprive its
loyal soldiers of a monthly pension during their old age especially where, as here, the
right had been vested to them through time. RA No. 340 does not provide that the loss
33
of Filipino citizenship would terminate one's retirement benefits; and that PD No. 1638
does not reduce whatever benefits that any person has already been receiving under
existing law.
Respondents sought reconsideration,12 but the RTC denied the same in an Order 13 dated
May 25, 2007, the decretal portion of which reads:chanroblesvirtuallawlibrary
WHEREFORE, premises considered, the instant Motion for Reconsideration is
hereby DENIED, considering that the questioned decision has not yet attained.its
finality. The Motion for Execution in the meantime is hereby DENIED.14cralawlawlibrary
Aggrieved, respondents elevated the case to the CA. After the submission of the parties'
respective memoranda, the case was submitted for decision.
Jeremias died on September 30, 200715 and was substituted by his wife, herein
petitioner.
On May 25, 2009, the CA granted respondents' appeal. The dispositive portion of the CA
decision reads:chanroblesvirtuallawlibrary
WHEREFORE, premises considered, the instant appeal is GRANTED. The appealed
decision is REVOKED and SET ASIDE.16cralawlawlibrary
In so ruling, the CA found that while it is true that Jeremias retired in 1976 under the
provisions of RA No. 340, as amended, which does not contain any provision anent
cessation or loss of retirement benefits upon acquiring another citizenship, PD No. 1638,
which was signed in 1979, effectively repealed RA No. 340, as amended. Section 27 of
PD No. 1638, which provides that the name of a retiree who loses his Filipino citizenship
shall be removed from the retired list and his retirement benefits terminated upon such
loss, was correctly made applicable to Jeremias' retirement benefits. Logic dictates that
since Jeremias had already renounced his allegiance to the Philippines, he cannot now
be compelled by the State to render active service and to render compulsory military
service when the need arises. The CA found that for the writ of mandamus to lie, it is
essential that Jeremias should have a clear legal right to the thing demanded and it
must be the imperative duty of respondents to perform the act required which petitioner
failed to show; thus, mandamus will not lie.
Petitioner's motion for reconsideration was denied in a Resolution dated September 10,
2009.
Hence, this petition raising the following:chanroblesvirtuallawlibrary
RESPONDENT COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN
RENDERING THE ASSAILED DECISION AND RESOLUTION WHICH SET ASIDE AND
REVERSED THE 26 FEBRUARY 2007 DECISION OF THE QC RTC
BECAUSE:chanroblesvirtuallawlibrary
PD 1638 should not have been applied and cannot be used against petitioner as her
husband's retirement and pension were granted to him by the AFP under RA 340 which
was not superseded by PD 1638, a later statute.
Petitioner correctly availed of the remedy of mandamus to compel the reinstatement of
his pension and benefits from the AFP under RA 340 as PD 1638 was not applicable to
him.
Petitioner contends that her husband's retirement from the active service in 1976 was
pursuant to the provisions of RA No. No. 340 as PD No. 1638 was not yet in existence
then, and there was nothing in RA No. 340 that disqualifies a retired military personnel
from receiving retirement benefits after acquiring foreign citizenship. The concept of
retirement benefits is such that one is entitled to them for services already rendered and
not for those to be made at a future time. Retirement benefits due petitioner's husband
under RA No. 340, is an acquired right which cannot be taken away by a subsequent
law. PD No. 1638 does not expressly provide for its retroactive application. Respondents,
being officers of the AFP tasked to implement the provisions of RA No. 340 have
neglected their function thereunder by delisting petitioner's husband as a retiree, thus,
mandamus is proper.
In his Comment, the Solicitor General argues that PD No. 1638 applies to all military
personnel in the service of the AFP whether active or retired; hence, it applies
retroactively to petitioner's husband. Even when a retiree is no longer in the active
service, his being a Filipino still makes him a part of the Citizen Armed Forces; that
whether a military personnel retires under the provisions of RA No. 340 or under PD No.
1638, he is still in the service of the military and/or the State only that he is retired,
thus, they should not be treated differently upon the loss of Filipino citizenship. He
argues when there is an irreconcilable conflict between the two laws of different
vintages, i.e., RA No. 340 and PD No. 1638, the latter enactment prevails.
The Solicitor General argues that mandamus will not issue to enforce a right to compel
compliance with a duty which is questionable or over which a substantial doubt exists. In
this case, petitioner's husband does not have a well-defined, clear and certain legal right
to continuously receive retirement benefits after becoming an American citizen.
Likewise, the AFP does not have a clear and imperative duty to grant the said benefits
considering that Section 27 of PD No. 1638 provides that the name of a retiree who
loses his Filipino citizenship shall be removed from the retired list and his retirement
benefits terminated upon such loss.
Petitioner filed her reply thereto. We find merit in the petition.
Petitioner's husband retired in 1976 under RA No. 340. He was already receiving his
monthly retirement benefit in the amount of P18,315.00 since December 1976 until it
was terminated in March 2005. Section 5, RA No. 340
provides:chanroblesvirtuallawlibrary
Sec. 5. Officers and enlisted men placed in the retired list shall be subject to the rules
and articles of war and to trial by court-martial for any breach thereof. At any time said
officers and enlisted men may be called to active service by the President. Refusal on
the part of any officer or enlisted man to perform such services shall terminate his right
to further participation in the benefits of this Act provided he resides in the Philippines
34
and is physically fit for service. Such fitness for service shall be determined by applicable
regulations.
The afore-quoted provision clearly shows how a retiree's retirement benefits may be
terminated, i.e., when the retiree refuses to perform active service when called to do so
provided that (1) the retiree resides in the Philippines and (2) is physically fit for service.
There is no other requirement found in the law which would be the reason for the
termination of a retiree's retirement benefits. Petitioner's husband was never called to
perform active service and refused to do so, however, his retirement benefit was
terminated. The reason for such termination was his loss of Filipino citizenship based on
Section 27 of PD No. 1638, to wit:chanroblesvirtuallawlibrary
Section 27. Military personnel retired under Sections 4, 5, 10, 11 and 12 shall be carried
in the retired list of the Armed Forces of the Philippines. The name of a retiree who loses
his Filipino citizenship shall be removed from the retired list and his retirement benefits
terminated upon such loss.
We find that the CA erred in applying PD No. 1638 to the retirement benefits of
petitioner's husband.
Firstly, PD No. 1638 was signed by then President Ferdinand Marcos on September 10,
1979. Under Article 4 of the Civil Code, it is provided that laws shall have no retroactive
effect, unless the contrary is provided. It is said that the law looks to the future only and
has no retroactive effect unless the legislator may have formally given that effect to
some legal provisions;17 that all statutes are to be construed as having only prospective
operation, unless the purpose and intention of the legislature to give them a
retrospective effect is expressly declared or is necessarily implied from the language
used; and that every case of doubt must be resolved against retrospective
effect.18 These principles also apply to amendments of statutes.
PD No. 1638 does not contain any provision regarding its retroactive application, nor the
same may be implied from its language. In fact, Section 36 of PD No. 1638 clearly
provides that the decree shall take effect upon its approval. As held in Parreno v.
COA,19 there is no question that PD No. 1638, as amended, applies prospectively. Since
PD No. 1638, as amended, is about the new system of retirement and separation from
service of military personnel, it should apply to those who were in the service at the
time of its approval.20 Conversely, PD No. 1638 is not applicable to those who retired
before its effectivity in 1979. The rule is familiar that after an act is amended, the
original act continues to be in force with regard to all rights that had accrued prior to
such amendment.21
Moreover, Section 27 of PD No. 1638 specifically provides for the retirees to whom the
law shall be applied, to wit:chanroblesvirtuallawlibrary
Section 27. Military personnel retired under Sections 4, 5, 10, 11 and 12 shall be
carried in the retired list of the Armed Forces of the Philippines. The name of a retiree
who loses his Filipino citizenship shall be removed from the retired list and his
retirement benefits terminated upon such loss, (emphasis supplied)
Notably, petitioner's husband did not retire under those above-enumerated Sections of
PD No. 1638 as he retired under RA No. 340.
Secondly, it has been held that before a right to retirement benefits or pension vests in
an employee, he must have met the stated conditions of eligibility with respect to the
nature of employment, age, and length of service. 22 Undeniably, petitioner's husband
had complied with the conditions of eligibility to retirement benefits as he was then
receiving his retirement benefits on a monthly basis until it was terminated. Where the
employee retires and meets the eligibility requirements, he acquires a vested right to
the benefits that is protected by the due process clause. 23 It is only upon retirement that
military personnel acquire a vested right to retirement benefits. 24 Retirees enjoy a
protected property interest whenever they acquire a right to immediate payment under
pre-existing law.25
In Ayog v. Cusi,26 we expounded the nature of a vested right,
thus:chanroblesvirtuallawlibrary
"A right is vested when the right to enjoyment has become the property of some
particular person or persons as a present interest" (16 C.J.S. 1173). It is "the privilege
to enjoy property legally vested, to enforce contracts, and enjoy the rights of property
conferred by the existing law" (12 C.J.S. 955, Note 46, No. 6) or "some right or interest
in property which has become fixed and established and is no longer open to doubt or
controversy" (Downs vs. Blount 170 Fed. 15, 20, cited in Balboa vs. Farrales, 51 Phil.
498, 502).
The due process clause prohibits the annihilation of vested rights. "A state may not
impair vested rights by legislative enactment, by the enactment or by the subsequent
repeal of a municipal ordinance, or by a change in the constitution of the State, except
in a legitimate exercise of the police power" (16 C.J.S. 1177-78).
It has been observed that, generally, the term "vested right" expresses the concept of
present fixed interest, which in right reason and natural justice should be protected
against arbitrary State action, or an innately just and imperative right which an
enlightened free society, sensitive to inherent and irrefragable individual rights, cannot
deny (16 C.J.S. 1174, Note 71, No. 5, citing Pennsylvania Greyhound Lines, Inc. vs.
Rosenthal, 192 Atl. 2nd 587).27cralawlawlibrary
Petitioner's husband acquired vested right to the payment of his retirement benefits
which must be respected and cannot be affected by the subsequent enactment of PD No.
1638 which provides that loss of Filipino citizenship terminates retirement benefits.
Vested rights include not only legal or equitable title to the enforcement of a demand,
but also an exemption from new obligations after the right has vested. 28
In fact, Sections 33 and 35 of PD No. 1638 recognize such vested right, to
wit:chanroblesvirtuallawlibrary
35
Section 33. Nothing in this Decree shall be construed in any manner to reduce whatever The petition for mandamus filed by petitioner's husband with the RTC was for the
retirement and separation pay or gratuity or other monetary benefits which any person payment of his terminated retirement benefits, which has become vested, and being a
is heretofore receiving or is entitled to receive under the provisions of existing law. ministerial duty on the part of the respondents to pay such claim, mandamus is the
proper remedy to compel such payment.
xxxx
The doctrine of exhaustion of administrative remedies calls for resort first to the
Section. 35. Except those necessary to give effect to the provisions of this Decree and to appropriate administrative authorities in the resolution of a controversy falling under
preserve the rights granted to retired or separated military personnel, all laws, rules and their jurisdiction before the same may be elevated to the courts of justice for
regulations inconsistent with the provisions of this Decree are hereby repealed or review.34 However, the principle of exhaustion of administrative remedies need not be
modified accordingly. adhered to when the question is purely legal. 35 This is because issues of law cannot be
resolved with finality by the administrative officer. 36 Appeal to the administrative officer
Section 33 of PD No. 1638 is clear that the law has no intention to reduce or to revoke
would only be an exercise in futility.37 Here, the question raised is purely legal, i.e., what
whatever retirement benefits being enjoyed by a retiree at the time of its passage.
law should be applied in the payment of retirement benefits of petitioner's husband.
Hence, Section 35 provides for an exception to what the decree repealed or
Thus, there was no need to exhaust all administrative remedies before a judicial relief
modified, i.e., except those necessary to preserve the rights granted to retired or
can be sought.cralawred
separated military personnel.
WHEREFORE, the petition is GRANTED. The Decision dated May 25, 2009 and the
We also find that the CA erred in finding that mandamus will not lie.
Resolution dated September 10, 2009 of the Court of Appeals are
hereby REVERSED and SET ASIDE. The Decision dated February 26, 2007 of the
Section 3, Rule 65 of the Rules of Court lay down under what circumstances petition for
Regional Trial Court of Quezon City, Branch 220, is AFFIRMED.
mandamus may be filed, to wit:chanroblesvirtuallawlibrary
SEC. 3. Petition for mandamus. - When any tribunal, corporation, board, officer or
SO ORDERED.chanroblesvirtuallawlibrary
person unlawfully neglects the performance of an act which the law specifically enjoins
as a duty resulting from an office, trust, or station, or unlawfully excludes another from
Velasco, Jr., (Chairperson), Perez,* Reyes, and Jardeleza, JJ., concur.
the use and enjoyment of a right or office to which such other is entitled, and there is no
other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the court, to do the act required to
be done to protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the respondent.

A writ of mandamus can be issued only when petitioner's legal right to the performance
of a particular act which is sought to be compelled is clear and complete. A clear legal
right is a right which is indubitably granted by law or is inferable as a matter of law. 29 A
doctrine well-embedded in our jurisprudence is that mandamus will issue only when the
petitioner has a clear legal right to the performance of the act sought to be compelled
and the respondent has an imperative duty to perform the same. 30 The remedy of
mandamus lies to compel the performance of a ministerial duty. 31 A purely ministerial
act or duty is one that an officer or tribunal performs in a given state of facts, in a
prescribed manner, in obedience to the mandate of a legal authority, without regard to
or the exercise of its own judgment upon the propriety or impropriety of the act
done.32 If the law imposes a duty upon a public officer, and gives him the right to decide
how or when the duty shall be performed, such duty is discretionary and not
ministerial.33

36
 ARTICLE 6 - WAIVER OF RIGHTS
9. G.R. No. 150429 August 29, 2006
ROBERTO G. FAMANILA, Petitioner,
vs.
THE COURT OF APPEALS (Spc. Fmr. Seventh Division) and BARBERSHIP MANAGEMENT
LIMITED and NFD INTERNATIONAL MANNING AGENTS, INC. Respondents.
DECISION
YNARES-SANTIAGO, J.:
Before us is a petition for review on certiorari assailing the Decision 1 of the Court of Appeals in CA-
G.R. SP No. 50615 dated March 30, 2001 which affirmed the Decision 2 of the National Labor
Relations Commission (NLRC) dated March 31, 1998 dismissing petitioner’s complaint for payment of
disability and other benefits for lack of merit and the Resolution 3 dated October 5, 2001 of the Court
of Appeals denying petitioner’s motion for reconsideration.
The antecedent facts are as follows:
In 1989, respondent NFD International Manning Agents, Inc. hired the services of petitioner Roberto
G. Famanila as Messman 4 for Hansa Riga, a vessel registered and owned by its principal and co-
respondent, Barbership Management Limited.
On June 21, 1990, while Hansa Riga was docked at the port of Eureka, California, U.S.A. and while
petitioner was assisting in the loading operations, the latter complained of a headache. Petitioner
experienced dizziness and he subsequently collapsed. Upon examination, it was determined that he
had a sudden attack of left cerebral hemorrhage from a ruptured cerebral aneurysm. 5 Petitioner
underwent a brain operation and he was confined at the Emmanuel Hospital in Portland, Oregon,
U.S.A. On July 19, 1990, he underwent a second brain operation.
Owing to petitioner’s physical and mental condition, he was repatriated to the Philippines. On August
21, 1990, he was examined at the American Hospital in Intramuros, Manila where the examining
physician, Dr. Patricia Abesamis declared that he "cannot go back to sea duty and has been
observed for 120 days, he is being declared permanently, totally disabled." 6
Thereafter, authorized representatives of the respondents convinced him to settle his claim amicably
by accepting the amount of US$13,200. 7 Petitioner accepted the offer as evidenced by his signature
in the Receipt and Release dated February 28, 1991. 8 His wife, Gloria Famanila and one Richard
Famanila, acted as witnesses in the signing of the release.
On June 11, 1997, petitioner filed a complaint 9 with the NLRC which was docketed as NLRC OCW
Case No. 6-838-97-L praying for an award of disability benefits, share in the insurance proceeds,
moral damages and attorney’s fees. On September 29, 1997, Acting Executive Labor Arbiter Voltaire
A. Balitaan dismissed the complaint on the ground of prescription. Petitioner appealed the decision
with the NLRC. On March 31, 1998, the NLRC promulgated its decision 10 finding the appeal to be
without merit and ordered its dismissal. When the motion for reconsideration11 was denied by the
NLRC in its resolution dated June 29, 1998, 12 petitioner filed a petition for certiorari with this Court.
On December 2, 1998, we resolved to refer the case to the Court of Appeals pursuant to our ruling
in St. Martin Funeral Home v. National Labor Relations Commission. 13
On March 30, 2001, the Court of Appeals promulgated the assailed decision which dismissed the
petition for lack of merit. Petitioner’s motion for reconsideration was denied, hence, the present
petition for review raising the following issues:
I. THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION IN UPHOLDING THE VALIDITY OF THE RECEIPT AND
RELEASE SINCE PETITIONER’S CONSENT THERETO WAS VITIATED THEREBY MAKING THE
SAME VOID AND UNENFORCEABLE.
II. THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION IN HOLDING THAT THE PRESCRIPTION PERIOD
APPLICABLE TO THE CLAIM OF THE PETITIONER IS THE 3-YEAR PERIOD PROVIDED FOR
UNDER THE LABOR CODE OF THE PHILIPPINES AND NOT THE 10-YEAR PERIOD PROVIDED
FOR UNDER THE CIVIL CODE.
Petitioner claims that he did not sign the Receipt and Release voluntarily or freely because he was
permanently disabled and in financial constraints. These factors allegedly vitiated his consent which
makes the Receipt and Release void and unenforceable.
The petition lacks merit.
It is fundamental that the scope of the Supreme Court’s judicial review under Rule 45 of the Rules of
Court is confined only to errors of law. It does not extend to questions of fact. More so in labor cases
where the doctrine applies with greater force. 14 The Labor Arbiter and the NLRC have already
determined the factual issues, and these were affirmed by the Court of Appeals. Thus, they are
accorded not only great respect but also finality and are deemed binding upon this Court so long as
they are supported by substantial evidence. 15 We reviewed the records of the case and we find no
reason to deviate from the findings of the labor arbiter, NLRC and the Court of Appeals.
A vitiated consent does not make a contract void and unenforceable. A vitiated consent only gives rise
to a voidable agreement. Under the Civil Code, the vices of consent are mistake, violence,
intimidation, undue influence or fraud.16 If consent is given through any of the aforementioned vices of
consent, the contract is voidable. 17 A voidable contract is binding unless annulled by a proper action
in court. 18
37
Petitioner contends that his permanent and total disability vitiated his consent to the Receipt and
Release thereby rendering it void and unenforceable. However, disability is not among the factors that
may vitiate consent. Besides, save for petitioner’s self-serving allegations, there is no proof on record
that his consent was vitiated on account of his disability. In the absence of such proof of vitiated
consent, the validity of the Receipt and Release must be upheld. We agree with the findings of the
Court of Appeals that:
In the case at bar, there is nothing in the records to show that petitioner’s consent was vitiated when
he signed the agreement. Granting that petitioner has not fully recovered his health at the time he
signed the subject document, the same cannot still lead to the conclusion that he did not voluntar[il]y
accept the agreement, for his wife and another relative witnessed his signing.
Moreover, the document entitled receipt and release which was attached by petitioner in his appeal
does not show on its face any violation of law or public policy. In fact, petitioner did not present any
proof to show that the consideration for the same is not reasonable and acceptable. Absent any
evidence to support the same, the Court cannot, on its own accord, decide against the
unreasonableness of the consideration. 19
It is true that quitclaims and waivers are oftentimes frowned upon and are considered as ineffective in
barring recovery for the full measure of the worker’s right and that acceptance of the benefits
therefrom does not amount to estoppel. 20 The reason is plain. Employer and employee, obviously do
not stand on the same footing. 21 However, not all waivers and quitclaims are invalid as against public
policy. If the agreement was voluntarily entered into and represents a reasonable settlement, it is
binding on the parties and may not later be disowned simply because of change of mind. It is only
where there is clear proof that the waiver was wangled from an unsuspecting or gullible person, or the
terms of the settlement are unconscionable on its face, that the law will step in to annul the
questionable transaction. But where it is shown that the person making the waiver did so voluntarily,
with full understanding of what he was doing, and the consideration for the quitclaim is credible and
reasonable, the transaction must be recognized as a valid and binding undertaking, 22 as in this case.
To be valid and effective, waivers must be couched in clear and unequivocal terms, leaving no doubt
as to the intention of those giving up a right or a benefit that legally pertains to them. 23 We have
reviewed the terms and conditions contained in the Receipt and Release and we find the same to be
clear and unambiguous. The signing was even witnessed by petitioner’s wife, Gloria T. Famanila and
one Richard T. Famanila. The Receipt and Release provides in part:
That for and in consideration of the sum of THIRTEEN THOUSAND TWO HUNDRED DOLLARS
(US$13,200.00) or its equivalent in Philippine currency THREE HUNDRED SIXTY FIVE THOUSAND
NINE HUNDRED FOUR PESOS (365,904.00), the receipt of which is hereby acknowledged to my full
and complete satisfaction x x x I, ROBERTO G. FAMANILA, x x x hereby remise, release and forever
discharge said vessel "HANSA RIGA", her Owners, operators, managers, charterers, agents,
underwriters, P and I Club, master, officers, and crew and all parties at interest therein or thereon,
whether named or not named, including but not limited to BARBER SHIP MANAGEMENT LIMITED,
NFD INTERNATIONAL MANNING AGENTS, INC. and ASSURANCEFORENIGEN GARD from any
and all claims, demands, debts, dues, liens, actions or causes of action, at law or in equity, in
common law or in admiralty, statutory or contractual, arising from and under the laws of the United
States of America, Norway, Hongkong or the Republic of the Philippines and/or any other foreign
country now held, owned or possessed by me or by any person or persons, arising from or related to
or concerning whether directly or indirectly, proximately or remotely, without being limited to but
including the said illness suffered by me on board the vessel "HANSA RIGA" on or about 21st June
1990 at Portland, Oregon and disability compensation in connection therewith.
This instrument is a GENERAL RELEASE intended to release all liabilities of any character and/or
claims or damages and/or losses and/or any other liabilities whatsoever, whether contractual or
statutory, at common law or in equity, tortious or in admiralty, now or henceforth in any way related to
or occurring as a consequence of the illness suffered by me as Messman of the vessel "HANSA
RIGA", including but not limited to all damages and/or losses consisting of loss of support, loss of
earning capacity, loss of all benefits of whatsoever nature and extent incurred, physical pain and
suffering and/or all damages and/or indemnities claimable in law, tort, contract, common law, equity
and/or admiralty by me or by any person or persons pursuant to the laws of the United States of
America, Norway, Hongkong or the Republic of the Philippines and of all other countries whatsoever.
I hereby certify that I am of legal age and that I fully understand this instrument which was read to me
in the local dialect and I agree that this is a FULL AND FINAL RELEASE AND DISCHARGE of all
parties and things referred to herein, and I further agree that this release may be pleaded as an
absolute and final bar to any suit or suits or legal proceedings that may hereafter be prosecuted by
me or by any one claiming by, through, or under me, against any of the persons or things
referred to or related herein, for any matter or thing referred to or related herein. 24
It is elementary that a contract is perfected by mere consent and from that moment the parties are
bound not only to the fulfillment of what has been expressly stipulated but also to all the
consequences which, according to their nature, may be in keeping with good faith, usage and
law. 25 Further, dire necessity is not an acceptable ground for annulling the Receipt and Release since
it has not been shown that petitioner was forced to sign it. 26
Regarding prescription, the applicable prescriptive period for the money claims against the
respondents is the three year period pursuant to Article 291 of the Labor Code which provides that:
ART. 291. Money Claims. – All money claims arising from employer-employee relations accruing
during the effectivity of this Code shall be filed within three (3) years from the time the cause of action
accrued; otherwise they shall be forever barred.
xxxx
Since petitioner’s demand for an award of disability benefits is a money claim arising from his
employment, Article 291 of the Labor Code applies. From the time petitioner was declared
permanently and totally disabled on August 21, 1990 which gave rise to his entitlement to disability
benefits up to the time that he filed the complaint on June 11, 1997, more than three years have
elapsed thereby effectively barring his claim.
38
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated March 30, 2001 in
CA-G.R. SP No. 50615 which affirmed the Decision of the National Labor Relations Commission
dismissing petitioner’s complaint for disability and other benefits for lack of merit, and
the Resolution dated October 5, 2001 denying the motion for reconsideration, are AFFIRMED.
SO ORDERED.
10. G.R. No. 163707 September 15, 2006
MICHAEL C. GUY, petitioner,
vs.
HON. COURT OF APPEALS, HON. SIXTO MARELLA, JR., Presiding Judge, RTC, Branch 138,
Makati City and minors, KAREN DANES WEI and KAMILLE DANES WEI, represented by their
mother, REMEDIOS OANES,respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari assails the January 22, 2004 Decision1 of the Court of Appeals in
CA-G.R. SP No. 79742, which affirmed the Orders dated July 21, 20002 and July 17, 20033 of the
Regional Trial Court of Makati City, Branch 138 in SP Proc. Case No. 4549 denying petitioner's
motion to dismiss; and its May 25, 2004 Resolution4 denying petitioner's motion for reconsideration.
The facts are as follows:
On June 13, 1997, private respondent-minors Karen Oanes Wei and Kamille Oanes Wei, represented
by their mother Remedios Oanes (Remedios), filed a petition for letters of administration5 before the
Regional Trial Court of Makati City, Branch 138. The case was docketed as Sp. Proc. No. 4549 and
entitled Intestate Estate of Sima Wei(a.k.a. Rufino Guy Susim).
Private respondents alleged that they are the duly acknowledged illegitimate children of Sima Wei,
who died intestate in Makati City on October 29, 1992, leaving an estate valued at P10,000,000.00
consisting of real and personal properties. His known heirs are his surviving spouse Shirley Guy and
children, Emy, Jeanne, Cristina, George and Michael, all surnamed Guy. Private respondents prayed
for the appointment of a regular administrator for the orderly settlement of Sima Wei's estate. They
likewise prayed that, in the meantime, petitioner Michael C. Guy, son of the decedent, be appointed
as Special Administrator of the estate. Attached to private respondents' petition was a Certification
Against Forum Shopping6 signed by their counsel, Atty. Sedfrey A. Ordoñez.
In his Comment/Opposition,7 petitioner prayed for the dismissal of the petition. He asserted that his
deceased father left no debts and that his estate can be settled without securing letters of
administration pursuant to Section 1, Rule 74 of the Rules of Court. He further argued that private
respondents should have established their status as illegitimate children during the lifetime of Sima
Wei pursuant to Article 175 of the Family Code.
The other heirs of Sima Wei filed a Joint Motion to Dismiss8 on the ground that the certification
against forum shopping should have been signed by private respondents and not their counsel. They
contended that Remedios should have executed the certification on behalf of her minor daughters as
mandated by Section 5, Rule 7 of the Rules of Court.
In a Manifestation/Motion as Supplement to the Joint Motion to Dismiss,9 petitioner and his co-heirs
alleged that private respondents' claim had been paid, waived, abandoned or otherwise extinguished
by reason of Remedios' June 7, 1993 Release and Waiver of Claim stating that in exchange for the
financial and educational assistance received from petitioner, Remedios and her minor children
discharge the estate of Sima Wei from any and all liabilities.
The Regional Trial Court denied the Joint Motion to Dismiss as well as the Supplemental Motion to
Dismiss. It ruled that while the Release and Waiver of Claim was signed by Remedios, it had not
been established that she was the duly constituted guardian of her minor daughters. Thus, no
renunciation of right occurred. Applying a liberal application of the rules, the trial court also rejected
petitioner's objections on the certification against forum shopping.
Petitioner moved for reconsideration but was denied. He filed a petition for certiorari before the Court
of Appeals which affirmed the orders of the Regional Trial Court in its assailed Decision dated
January 22, 2004, the dispositive portion of which states:
WHEREFORE, premises considered, the present petition is hereby DENIED DUE COURSE
and accordingly DISMISSED, for lack of merit. Consequently, the assailed Orders dated July
21, 2000 and July 17, 2003 are hereby both AFFIRMED. Respondent Judge is hereby
DIRECTED to resolve the controversy over the illegitimate filiation of the private respondents
(sic) minors [-] Karen Oanes Wei and Kamille Oanes Wei who are claiming successional
rights in the intestate estate of the deceased Sima Wei, a.k.a. Rufino Guy Susim.
SO ORDERED.10
The Court of Appeals denied petitioner's motion for reconsideration, hence, this petition.
Petitioner argues that the Court of Appeals disregarded existing rules on certification against forum
shopping; that the Release and Waiver of Claim executed by Remedios released and discharged the
Guy family and the estate of Sima Wei from any claims or liabilities; and that private respondents do
not have the legal personality to institute the petition for letters of administration as they failed to
prove their filiation during the lifetime of Sima Wei in accordance with Article 175 of the Family Code.
Private respondents contend that their counsel's certification can be considered substantial
compliance with the rules on certification of non-forum shopping, and that the petition raises no new
issues to warrant the reversal of the decisions of the Regional Trial Court and the Court of Appeals.
39
The issues for resolution are: 1) whether private respondents' petition should be dismissed for failure
to comply with the rules on certification of non-forum shopping; 2) whether the Release and Waiver of
Claim precludes private respondents from claiming their successional rights; and 3) whether private
respondents are barred by prescription from proving their filiation.
The petition lacks merit.
Rule 7, Section 5 of the Rules of Court provides that the certification of non-forum shopping should be
executed by the plaintiff or the principal party. Failure to comply with the requirement shall be cause
for dismissal of the case. However, a liberal application of the rules is proper where the higher interest
of justice would be served. In Sy Chin v. Court of Appeals,11 we ruled that while a petition may have
been flawed where the certificate of non-forum shopping was signed only by counsel and not by the
party, this procedural lapse may be overlooked in the interest of substantial justice.12 So it is in the
present controversy where the merits13 of the case and the absence of an intention to violate the rules
with impunity should be considered as compelling reasons to temper the strict application of the rules.
As regards Remedios' Release and Waiver of Claim, the same does not bar private respondents from
claiming successional rights. To be valid and effective, a waiver must be couched in clear and
unequivocal terms which leave no doubt as to the intention of a party to give up a right or benefit
which legally pertains to him. A waiver may not be attributed to a person when its terms do not
explicitly and clearly evince an intent to abandon a right.14
In this case, we find that there was no waiver of hereditary rights. The Release and Waiver of Claim
does not state with clarity the purpose of its execution. It merely states that Remedios received
P300,000.00 and an educational plan for her minor daughters "by way of financial assistance and in
full settlement of any and all claims of whatsoever nature and kind x x x against the estate of the late
Rufino Guy Susim."15 Considering that the document did not specifically mention private respondents'
hereditary share in the estate of Sima Wei, it cannot be construed as a waiver of successional rights.
Moreover, even assuming that Remedios truly waived the hereditary rights of private respondents,
such waiver will not bar the latter's claim. Article 1044 of the Civil Code, provides:
ART. 1044. Any person having the free disposal of his property may accept or repudiate an
inheritance.
Any inheritance left to minors or incapacitated persons may be accepted by their
parents or guardians. Parents or guardians may repudiate the inheritance left to their
wards only by judicial authorization.
The right to accept an inheritance left to the poor shall belong to the persons designated by
the testator to determine the beneficiaries and distribute the property, or in their default, to
those mentioned in Article 1030. (Emphasis supplied)
Parents and guardians may not therefore repudiate the inheritance of their wards without judicial
approval. This is because repudiation amounts to an alienation of property16 which must pass the
court's scrutiny in order to protect the interest of the ward. Not having been judicially authorized, the
Release and Waiver of Claim in the instant case is void and will not bar private respondents from
asserting their rights as heirs of the deceased.
Furthermore, it must be emphasized that waiver is the intentional relinquishment of a known right.
Where one lacks knowledge of a right, there is no basis upon which waiver of it can rest. Ignorance of
a material fact negates waiver, and waiver cannot be established by a consent given under a mistake
or misapprehension of fact.17
In the present case, private respondents could not have possibly waived their successional rights
because they are yet to prove their status as acknowledged illegitimate children of the deceased.
Petitioner himself has consistently denied that private respondents are his co-heirs. It would thus be
inconsistent to rule that they waived their hereditary rights when petitioner claims that they do not
have such right. Hence, petitioner's invocation of waiver on the part of private respondents must fail.
Anent the issue on private respondents' filiation, we agree with the Court of Appeals that a ruling on
the same would be premature considering that private respondents have yet to present evidence.
Before the Family Code took effect, the governing law on actions for recognition of illegitimate
children was Article 285 of the Civil Code, to wit:
ART. 285. The action for the recognition of natural children may be brought only during the
lifetime of the presumed parents, except in the following cases:
(1) If the father or mother died during the minority of the child, in which case the latter
may file the action before the expiration of four years from the attainment of his
majority;
(2) If after the death of the father or of the mother a document should appear of which
nothing had been heard and in which either or both parents recognize the child.
In this case, the action must be commenced within four years from the finding of the
document. (Emphasis supplied)
We ruled in Bernabe v. Alejo18 that illegitimate children who were still minors at the time the Family
Code took effect and whose putative parent died during their minority are given the right to seek
recognition for a period of up to four years from attaining majority age. This vested right was not
impaired or taken away by the passage of the Family Code.19
On the other hand, Articles 172, 173 and 175 of the Family Code, which superseded Article 285 of the
Civil Code, provide:
ART. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
40
 (2) An admission of legitimate filiation in a public document or a private handwritten
instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
ART. 173. The action to claim legitimacy may be brought by the child during his or her
lifetime and shall be transmitted to the heirs should the child die during minority or in a state
of insanity. In these cases, the heirs shall have a period of five years within which to institute
the action.
The action already commenced by the child shall survive notwithstanding the death of either
or both of the parties.
ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and
on the same, evidence as legitimate children.
The action must be brought within the same period specified in Article 173, except when the
action is based on the second paragraph of Article 172, in which case the action may be
brought during the lifetime of the alleged parent.
Under the Family Code, when filiation of an illegitimate child is established by a record of birth
appearing in the civil register or a final judgment, or an admission of filiation in a public document or a
private handwritten instrument signed by the parent concerned, the action for recognition may be
brought by the child during his or her lifetime. However, if the action is based upon open and
continuous possession of the status of an illegitimate child, or any other means allowed by the rules
or special laws, it may only be brought during the lifetime of the alleged parent.
It is clear therefore that the resolution of the issue of prescription depends on the type of evidence to
be adduced by private respondents in proving their filiation. However, it would be impossible to
determine the same in this case as there has been no reception of evidence yet. This Court is not a
trier of facts. Such matters may be resolved only by the Regional Trial Court after a full-blown trial.
While the original action filed by private respondents was a petition for letters of administration, the
trial court is not precluded from receiving evidence on private respondents' filiation. Its jurisdiction
extends to matters incidental and collateral to the exercise of its recognized powers in handling the
settlement of the estate, including the determination of the status of each heir.20 That the two causes
of action, one to compel recognition and the other to claim inheritance, may be joined in one
complaint is not new in our jurisprudence.21 As held in Briz v. Briz:22
The question whether a person in the position of the present plaintiff can in any event
maintain a complex action to compel recognition as a natural child and at the same time to
obtain ulterior relief in the character of heir, is one which in the opinion of this court must be
answered in the affirmative, provided always that the conditions justifying the joinder of the
two distinct causes of action are present in the particular case. In other words, there is no
absolute necessity requiring that the action to compel acknowledgment should have been
instituted and prosecuted to a successful conclusion prior to the action in which that same
plaintiff seeks additional relief in the character of heir. Certainly, there is nothing so peculiar
to the action to compel acknowledgment as to require that a rule should be here applied
different from that generally applicable in other cases. x x x
The conclusion above stated, though not heretofore explicitly formulated by this court, is
undoubtedly to some extent supported by our prior decisions. Thus, we have held in
numerous cases, and the doctrine must be considered well settled, that a natural child
having a right to compel acknowledgment, but who has not been in fact acknowledged, may
maintain partition proceedings for the division of the inheritance against his coheirs
(Siguiong vs. Siguiong, 8 Phil., 5; Tiamson vs. Tiamson, 32 Phil., 62); and the same person
may intervene in proceedings for the distribution of the estate of his deceased natural father,
or mother (Capistrano vs. Fabella, 8 Phil., 135; Conde vs. Abaya, 13 Phil., 249; Ramirez vs.
Gmur, 42 Phil., 855). In neither of these situations has it been thought necessary for the
plaintiff to show a prior decree compelling acknowledgment. The obvious reason is that in
partition suits and distribution proceedings the other persons who might take by inheritance
are before the court; and the declaration of heirship is appropriate to such proceedings.
WHEREFORE, the instant petition is DENIED. The Decision dated January 22, 2004 of the Court of
Appeals in CA-G.R. SP No. 79742 affirming the denial of petitioner's motion to dismiss; and its
Resolution dated May 25, 2004 denying petitioner's motion for reconsideration, are AFFIRMED. Let
the records be REMANDED to the Regional Trial Court of Makati City, Branch 138 for further
proceedings.
SO ORDERED.
Panganiban, C.J., Chairperson, Austria-Martinez, Callejo, Sr., Chico-Nazario, J.J., concur.
41
 ARTICLE 9 - DUTY OF COURTS 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."
11. G.R. No. 174689 October 22, 2007

An order setting the case for initial hearing was published in the People’s Journal Tonight, a
ROMMEL JACINTO DANTES SILVERIO, petitioner,
newspaper of general circulation in Metro Manila, for three consecutive weeks.3 Copies of the order
vs.
were sent to the Office of the Solicitor General (OSG) and the civil registrar of Manila.
REPUBLIC OF THE PHILIPPINES, respondent.

On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the
DECISION
petition was made.

CORONA, J.:
During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American
fiancé, Richard P. Edel, as witnesses.
When God created man, He made him in the likeness of God; He created them male and
female. (Genesis 5:1-2)
On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions read:

Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from
Petitioner filed the present petition not to evade any law or judgment or any infraction thereof
inside the bamboo. "Oh North Wind! North Wind! Please let us out!," the voices said. She
or for any unlawful motive but solely for the purpose of making his birth records compatible
pecked the reed once, then twice. All of a sudden, the bamboo cracked and slit open. Out
with his present sex.
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) The sole issue here is whether or not petitioner is entitled to the relief asked for.

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 person’s 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."
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance
with the principles of justice and equity. With his sexual [re-assignment], petitioner, who has
always felt, thought and acted like a woman, now possesses the physique of a female.
Petitioner’s misfortune to be trapped in a man’s 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 [fiancé] and the realization of
their dreams.

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
man’s 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.
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 petitioner’s first name from "Rommel Jacinto" to MELY and petitioner’s
gender from "Male" to FEMALE. 5

42
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 court’s 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 Republic’s 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 Person’s First Name Cannot Be Changed On the Ground of Sex Reassignment
Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As
found by the trial court:
Petitioner filed the present petition not to evade any law or judgment or any infraction thereof
or for any unlawful motive but solely for the purpose of making his birth records
compatible with his present sex. (emphasis supplied)
Petitioner believes that after having acquired the physical features of a female, he became entitled to
the civil registry changes sought. We disagree.
The State has an interest in the names borne by individuals and entities for purposes of
identification.11 A change of name is a privilege, not a right.12 Petitions for change of name are
controlled by statutes.13 In this connection, Article 376 of the Civil Code provides:
ART. 376. No person can change his name or surname without judicial authority.
This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of
RA 9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name
or Nickname. – No entry in a civil register shall be changed or corrected without a judicial
order, except for clerical or typographical errors and change of first name or nickname which
can be corrected or changed by the concerned city or municipal civil registrar or consul
general in accordance with the provisions of this Act and its implementing rules and
regulations.
RA 9048 now governs the change of first name.14 It vests the power and authority to entertain
petitions for change of first name to the city or municipal civil registrar or consul general concerned.
Under the law, therefore, jurisdiction over applications for change of first name is now primarily lodged
with the aforementioned administrative officers. The intent and effect of the law is to exclude the
change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or
Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative
petition for change of name is first filed and subsequently denied.15 It likewise lays down the
corresponding venue,16 form17 and procedure. In sum, the remedy and the proceedings regulating
change of first name are primarily administrative in nature, not judicial.
RA 9048 likewise provides the grounds for which change of first name may be allowed:
SECTION 4. Grounds for Change of First Name or Nickname. – The petition for change of
first name or nickname may be allowed in any of the following cases:
(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or
extremely difficult to write or pronounce;
(2) The new first name or nickname has been habitually and continuously used by the
petitioner and he has been publicly known by that first name or nickname in the community;
or
(3) The change will avoid confusion.
Petitioner’s 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 one’s 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 petitioner’s 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 petitioner’s first name was
not within that court’s 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 petitioner’s petition in so far
as the change of his first name was concerned.
43
No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex
Reassignment
The determination of a person’s sex appearing in his birth certificate is a legal issue and the court
must look to the statutes.21 In this connection, Article 412 of the Civil Code provides:
ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.
Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far
as clerical or typographical errors are involved. The correction or change of such matters can now be
made through administrative proceedings and without the need for a judicial order. In effect, RA 9048
removed from the ambit of Rule 108 of the Rules of Court the correction of such errors.22 Rule 108
now applies only to substantial changes and corrections in entries in the civil register.23
Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:
SECTION 2. Definition of Terms. – As used in this Act, the following terms shall mean:
xxx xxx xxx
(3) "Clerical or typographical error" refers to a mistake committed in the
performance of clerical work in writing, copying, transcribing or typing an entry in
the civil register that is harmless and innocuous, such as misspelled name or
misspelled place of birth or the like, which is visible to the eyes or obvious to the
understanding, and can be corrected or changed only by reference to other existing
record or records: Provided, however, That no correction must involve the
change of nationality, age, status or sex of the petitioner. (emphasis supplied)
Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the
Rules of Court.
The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of
Court are those provided in Articles 407 and 408 of the Civil Code:24
ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be
recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those
that occur after birth.25 However, no reasonable interpretation of the provision can justify the
conclusion that it covers the correction on the ground of sex reassignment.
To correct simply means "to make or set aright; to remove the faults or error from" while to change
means "to replace something with something else of the same kind or with something that serves as
a substitute."26 The birth certificate of petitioner contained no error. All entries therein, including those
corresponding to his first name and sex, were all correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as
legitimations, acknowledgments of illegitimate children and naturalization), events (such as births,
marriages, naturalization and deaths) and judicial decrees (such as legal separations, annulments of
marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of
citizenship, civil interdiction, judicial determination of filiation and changes of name). These acts,
events and judicial decrees produce legal consequences that touch upon the legal capacity, status
and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex
reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor
even mentioned by any law, expressly or impliedly.
"Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities
and incapacities) of a person in view of his age, nationality and his family membership.27
The status of a person in law includes all his personal qualities and relations, more or less
permanent in nature, not ordinarily terminable at his own will, such as his being
legitimate or illegitimate, or his being married or not. The comprehensive term status…
include such matters as the beginning and end of legal personality, capacity to have rights in
general, family relations, and its various aspects, such as birth, legitimation, adoption,
emancipation, marriage, divorce, and sometimes even succession.28 (emphasis supplied)
A person’s sex is an essential factor in marriage and family relations. It is a part of a person’s 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 petitioner’s cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births. – The declaration of the physician or midwife
in attendance at the birth or, in default thereof, the declaration of either parent of the
44
 newborn child, shall be sufficient for the registration of a birth in the civil register. Such
declaration shall be exempt from documentary stamp tax and shall be sent to the local civil
registrar not later than thirty days after the birth, by the physician or midwife in attendance at
the birth or by either parent of the newborn child.
In such declaration, the person above mentioned shall certify to the following facts: (a) date
and hour of birth; (b) sex and nationality of infant; (c) names, citizenship and religion of
parents or, in case the father is not known, of the mother alone; (d) civil status of parents; (e)
place where the infant was born; and (f) such other data as may be required in the
regulations to be issued.
xxx xxx xxx (emphasis supplied)
Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the
time of birth.29Thus, 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 person’s sex made at the time of his or
her birth, if not attended by error,30 is immutable.31
When words are not defined in a statute they are to be given their common and ordinary meaning in
the absence of a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil
Register Law and laws concerning the civil registry (and even all other laws) should therefore be
understood in their common and ordinary usage, there being no legislative intent to the contrary. In
this connection, sex is defined as "the sum of peculiarities of structure and function that distinguish a
male from a female"32 or "the distinction between male and female."33Female is "the sex that
produces ova or bears young"34 and male is "the sex that has organs to produce spermatozoa for
fertilizing ova."35 Thus, the words "male" and "female" in everyday understanding do not include
persons who have undergone sex reassignment. Furthermore, "words that are employed in a statute
which had at the time a well-known meaning are presumed to have been used in that sense unless
the context compels to the contrary."36 Since the statutory language of the Civil Register Law was
enacted in the early 1900s and remains unchanged, it cannot be argued that the term "sex" as used
then is something alterable through surgery or something that allows a post-operative male-to-female
transsexual to be included in the category "female."
For these reasons, while petitioner may have succeeded in altering his body and appearance through
the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry
for that reason. Thus, there is no legal basis for his petition for the correction or change of the entries
in his birth certificate.
Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground
of Equity
The trial court opined that its grant of the petition was in consonance with the principles of justice and
equity. It believed that allowing the petition would cause no harm, injury or prejudice to anyone. This
is wrong.
The changes sought by petitioner will have serious and wide-ranging legal and public policy
consequences. First, even the trial court itself found that the petition was but petitioner’s first step
towards his eventual marriage to his male fiancé. However, marriage, one of the most sacred social
institutions, is a special contract of permanent union between a man and a woman.37 One of its
essential requisites is the legal capacity of the contracting parties who must be a male and a
female.38 To grant the changes sought by petitioner will substantially reconfigure and greatly alter the
laws on marriage and family relations. It will allow the union of a man with another man who has
undergone sex reassignment (a male-to-female post-operative transsexual). Second, there are
various laws which apply particularly to women such as the provisions of the Labor Code on
employment of women,39 certain felonies under the Revised Penal Code40 and the presumption of
survivorship in case of calamities under Rule 131 of the Rules of Court,41 among others. These laws
underscore the public policy in relation to women which could be substantially affected if petitioner’s
petition were to be granted.
It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render
judgment by reason of the silence, obscurity or insufficiency of the law." However, it is not a license
for courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not to
make or amend it.
In our system of government, it is for the legislature, should it choose to do so, to determine what
guidelines should govern the recognition of the effects of sex reassignment. The need for legislative
guidelines becomes particularly important in this case where the claims asserted are statute-based.
To reiterate, the statutes define who may file petitions for change of first name and for correction or
change of entries in the civil registry, where they may be filed, what grounds may be invoked, what
proof must be presented and what procedures shall be observed. If the legislature intends to confer
on a person who has undergone sex reassignment the privilege to change his name and sex to
conform with his reassigned sex, it has to enact legislation laying down the guidelines in turn
governing the conferment of that privilege.
It might be theoretically possible for this Court to write a protocol on when a person may be
recognized as having successfully changed his sex. However, this Court has no authority to fashion a
law on that matter, or on anything else. The Court cannot enact a law where no law exists. It can only
apply or interpret the written word of its co-equal branch of government, Congress.
Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the]
realization of their dreams." No argument about that. The Court recognizes that there are people
whose preferences and orientation do not fit neatly into the commonly recognized parameters of
social convention and that, at least for them, life is indeed an ordeal. However, the remedies
petitioner seeks involve questions of public policy to be addressed solely by the legislature, not by the
courts.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
45
SO ORDERED.

Puno, C.J., Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, JJ., concur.

46
 ARTICLE 14 - OBLIGATORY EFFECT OF PENAL LAWS
12. G.R. No. 193707 December 10, 2014
NORMA A. DEL SOCORRO, for and in behalf of her minor child RODERIGO NORJO VAN
WILSEM, Petitioner,
vs.
ERNST JOHAN BRINKMAN VAN WILSEM, Respondent.
DECISION
PERALTA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to
reverse and set aside the Orders1 dated February 19, 2010 and September 1, 2010, respectively, of
the Regional Trial Court of Cebu City (RTC-Cebu), which dismissed the criminal case entitled People
of the Philippines v. Ernst Johan Brinkman Van Wilsem, docketed as Criminal Case No. CBU-85503,
for violation of Republic Act (R.A.) No. 9262, otherwise known as the Anti-Violence Against Women
and Their Children Act of 2004.
The following facts are culled from the records:
Petitioner Norma A. Del Socorro and respondent Ernst Johan Brinkman Van Wilsem contracted
marriage in Holland on September 25, 1990.2 On January 19, 1994, they were blessed with a son
named Roderigo Norjo Van Wilsem, who at the time of the filing of the instant petition was sixteen
(16) years of age.3
Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a Divorce Decree issued by
the appropriate Court of Holland.4 At that time, their son was only eighteen (18) months
old.5 Thereafter, petitioner and her son came home to the Philippines.6
According to petitioner, respondent made a promise to provide monthly support to their son in the
amount of Two Hundred Fifty (250) Guildene (which is equivalent to Php17,500.00 more or
less).7 However, since the arrival of petitioner and her son in the Philippines, respondent never gave
support to the son, Roderigo.8
Not long thereafter, respondent cameto the Philippines and remarried in Pinamungahan, Cebu, and
since then, have been residing thereat.9 Respondent and his new wife established a business known
as Paree Catering, located at Barangay Tajao, Municipality of Pinamungahan, Cebu City.10 To date, all
the parties, including their son, Roderigo, are presently living in Cebu City.11
On August 28, 2009, petitioner, through her counsel, sent a letter demanding for support from
respondent. However, respondent refused to receive the letter.12
Because of the foregoing circumstances, petitioner filed a complaint affidavit with the Provincial
Prosecutor of Cebu City against respondent for violation of Section 5, paragraph E(2) of R.A. No.
9262 for the latter’s unjust refusal to support his minor child with petitioner.13 Respondent submitted
his counter-affidavit thereto, to which petitioner also submitted her reply-affidavit.14 Thereafter, the
Provincial Prosecutor of Cebu City issued a Resolution recommending the filing of an information for
the crime charged against herein respondent.
The information, which was filed with the RTC-Cebu and raffled to Branch 20 thereof, states that:
That sometime in the year 1995 and up to the present, more or less, in the Municipality of Minglanilla,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there wilfully, unlawfully and deliberately deprive, refuse and still continue to
deprive his son RODERIGO NORJO VAN WILSEM, a fourteen (14) year old minor, of financial
support legally due him, resulting in economic abuse to the victim. CONTRARY TO LAW.15
Upon motion and after notice and hearing, the RTC-Cebu issued a Hold Departure Order against
respondent.16Consequently, respondent was arrested and, subsequently, posted bail.17 Petitioner also
filed a Motion/Application of Permanent Protection Order to which respondent filed his
Opposition.18 Pending the resolution thereof, respondent was arraigned.19 Subsequently, without the
RTC-Cebu having resolved the application of the protection order, respondent filed a Motion to
Dismiss on the ground of: (1) lack of jurisdiction over the offense charged; and (2) prescription of the
crime charged.20
On February 19, 2010, the RTC-Cebu issued the herein assailed Order,21 dismissing the instant
criminal case against respondent on the ground that the facts charged in the information do not
constitute an offense with respect to the respondent who is an alien, the dispositive part of which
states:
WHEREFORE, the Court finds that the facts charged in the information do not constitute an offense
with respect to the accused, he being an alien, and accordingly, orders this case DISMISSED.
The bail bond posted by accused Ernst Johan Brinkman Van Wilsem for his provisional liberty is
hereby cancelled (sic) and ordered released.
SO ORDERED.
Cebu City, Philippines, February 19, 2010.22
Thereafter, petitioner filed her Motion for Reconsideration thereto reiterating respondent’s obligation
to support their child under Article 19523 of the Family Code, thus, failure to do so makes him liable
under R.A. No. 9262 which "equally applies to all persons in the Philippines who are obliged to
support their minor children regardless of the obligor’s nationality."24
47
On September 1, 2010, the lower court issued an Order25 denying petitioner’s Motion for
Reconsideration and reiterating its previous ruling. Thus:
x x x The arguments therein presented are basically a rehash of those advanced earlier in the
memorandum of the prosecution. Thus, the court hereby reiterates its ruling that since the accused is
a foreign national he is not subject to our national law (The Family Code) in regard to a parent’s duty
and obligation to givesupport to his child. Consequently, he cannot be charged of violating R.A. 9262
for his alleged failure to support his child. Unless it is conclusively established that R.A. 9262 applies
to a foreigner who fails to give support tohis child, notwithstanding that he is not bound by our
domestic law which mandates a parent to give such support, it is the considered opinion of the court
that no prima faciecase exists against the accused herein, hence, the case should be dismissed.
WHEREFORE, the motion for reconsideration is hereby DENIED for lack of merit.
SO ORDERED.
Cebu City, Philippines, September 1, 2010.26
Hence, the present Petition for Review on Certiorari raising the following issues:
1. Whether or not a foreign national has an obligation to support his minor child under
Philippine law; and
2. Whether or not a foreign national can be held criminally liable under R.A. No. 9262 for his
unjustified failure to support his minor child.27
At the outset, let it be emphasized that We are taking cognizance of the instant petition despite the
fact that the same was directly lodged with the Supreme Court, consistent with the ruling in Republic
v. Sunvar Realty Development Corporation,28 which lays down the instances when a ruling of the trial
court may be brought on appeal directly to the Supreme Court without violating the doctrine of
hierarchy of courts, to wit:
x x x Nevertheless, the Rules do not prohibit any of the parties from filing a Rule 45 Petition with this
Court, in case only questions of law are raised or involved. This latter situation was one that
petitioners found themselves in when they filed the instant Petition to raise only questions of law. In
Republic v. Malabanan, the Court clarified the three modes of appeal from decisions of the RTC, to
wit: (1) by ordinary appeal or appeal by writ of error under Rule 41, whereby judgment was rendered
in a civil or criminal action by the RTC in the exercise of its original jurisdiction; (2) by a petition for
review under Rule 42, whereby judgment was rendered by the RTC in the exercise of its appellate
jurisdiction; and (3) by a petition for review on certiorari before the Supreme Court under Rule 45.
"The first mode of appeal is taken to the [Court of Appeals] on questions of fact or mixed questions of
fact and law. The second mode of appeal is brought to the CA on questions of fact, of law, or mixed
questions of fact and law. The third mode of appealis elevated to the Supreme Court only on
questions of law." (Emphasis supplied)
There is a question of law when the issue does not call for an examination of the probative value of
the evidence presented or of the truth or falsehood of the facts being admitted, and the doubt
concerns the correct application of law and jurisprudence on the matter. The resolution of the issue
must rest solely on what the law provides on the given set of circumstances.29
Indeed, the issues submitted to us for resolution involve questions of law – the response thereto
concerns the correct application of law and jurisprudence on a given set of facts, i.e.,whether or not a
foreign national has an obligation to support his minor child under Philippine law; and whether or not
he can be held criminally liable under R.A. No. 9262 for his unjustified failure to do so.
It cannot be negated, moreover, that the instant petition highlights a novel question of law concerning
the liability of a foreign national who allegedly commits acts and omissions punishable under special
criminal laws, specifically in relation to family rights and duties. The inimitability of the factual milieu of
the present case, therefore, deserves a definitive ruling by this Court, which will eventually serve as a
guidepost for future cases. Furthermore, dismissing the instant petition and remanding the same to
the CA would only waste the time, effort and resources of the courts. Thus, in the present case,
considerations of efficiency and economy in the administration of justice should prevail over the
observance of the hierarchy of courts.
Now, on the matter of the substantive issues, We find the petition meritorious. Nonetheless, we do not
fully agree with petitioner’s contentions.
To determine whether or not a person is criminally liable under R.A. No. 9262, it is imperative that the
legal obligation to support exists.
Petitioner invokes Article 19530 of the Family Code, which provides the parent’s obligation to support
his child. Petitioner contends that notwithstanding the existence of a divorce decree issued in relation
to Article 26 of the Family Code,31 respondent is not excused from complying with his obligation to
support his minor child with petitioner.
On the other hand, respondent contends that there is no sufficient and clear basis presented by
petitioner that she, as well as her minor son, are entitled to financial support.32 Respondent also
added that by reason of the Divorce Decree, he is not obligated topetitioner for any financial
support.33
On this point, we agree with respondent that petitioner cannot rely on Article 19534 of the New Civil
Code in demanding support from respondent, who is a foreign citizen, since Article 1535 of the New
Civil Code stresses the principle of nationality. In other words, insofar as Philippine laws are
concerned, specifically the provisions of the Family Code on support, the same only applies to Filipino
citizens. By analogy, the same principle applies to foreigners such that they are governed by their
national law with respect to family rights and duties.36
The obligation to give support to a child is a matter that falls under family rights and duties. Since the
respondent is a citizen of Holland or the Netherlands, we agree with the RTC-Cebu that he is subject
48
to the laws of his country, not to Philippinelaw, as to whether he is obliged to give support to his child,
as well as the consequences of his failure to do so.37
In the case of Vivo v. Cloribel,38 the Court held that –
Furthermore, being still aliens, they are not in position to invoke the provisions of the Civil Code of the
Philippines, for that Code cleaves to the principle that family rights and duties are governed by their
personal law, i.e.,the laws of the nation to which they belong even when staying in a foreign country
(cf. Civil Code, Article 15).39
It cannot be gainsaid, therefore, that the respondent is not obliged to support petitioner’s son under
Article195 of the Family Code as a consequence of the Divorce Covenant obtained in Holland. This
does not, however, mean that respondent is not obliged to support petitioner’s son altogether.
In international law, the party who wants to have a foreign law applied to a dispute or case has the
burden of proving the foreign law.40 In the present case, respondent hastily concludes that being a
national of the Netherlands, he is governed by such laws on the matter of provision of and capacity to
support.41 While respondent pleaded the laws of the Netherlands in advancing his position that he is
not obliged to support his son, he never proved the same.
It is incumbent upon respondent to plead and prove that the national law of the Netherlands does not
impose upon the parents the obligation to support their child (either before, during or after the
issuance of a divorce decree), because Llorente v. Court of Appeals,42 has already enunciated that:
True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to
takejudicial notice of them. Like any other fact, they must be alleged and proved.43
In view of respondent’s failure to prove the national law of the Netherlands in his favor, the doctrine of
processual presumption shall govern. Under this doctrine, if the foreign law involved is not properly
pleaded and proved, our courts will presume that the foreign law is the same as our local or domestic
or internal law.44 Thus, since the law of the Netherlands as regards the obligation to support has not
been properly pleaded and proved in the instant case, it is presumed to be the same with Philippine
law, which enforces the obligation of parents to support their children and penalizing the non-
compliance therewith.
Moreover, while in Pilapil v. Ibay-Somera,45 the Court held that a divorce obtained in a foreign land as
well as its legal effects may be recognized in the Philippines in view of the nationality principle on the
matter of status of persons, the Divorce Covenant presented by respondent does not completely
show that he is notliable to give support to his son after the divorce decree was issued. Emphasis is
placed on petitioner’s allegation that under the second page of the aforesaid covenant, respondent’s
obligation to support his child is specifically stated,46 which was not disputed by respondent.
We likewise agree with petitioner that notwithstanding that the national law of respondent states that
parents have no obligation to support their children or that such obligation is not punishable by law,
said law would still not find applicability,in light of the ruling in Bank of America, NT and SA v.
American Realty Corporation,47 to wit:
In the instant case, assuming arguendo that the English Law on the matter were properly pleaded
and proved in accordance with Section 24, Rule 132 of the Rules of Court and the jurisprudence laid
down in Yao Kee, et al. vs. Sy-Gonzales, said foreign law would still not find applicability.
Thus, when the foreign law, judgment or contract is contrary to a sound and established public policy
of the forum, the said foreign law, judgment or order shall not be applied.
Additionally, prohibitive laws concerning persons, their acts or property, and those which have for
their object public order, public policy and good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign country.
The public policy sought to be protected in the instant case is the principle imbedded in our
jurisdiction proscribing the splitting up of a single cause of action.
Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent
—
If two or more suits are instituted on the basis of the same cause of action, the filing of one or a
judgment upon the merits in any one is available as a ground for the dismissal of the others.
Moreover, foreign law should not be applied when its application would work undeniable injustice to
the citizens or residents of the forum. To give justice is the most important function of law; hence, a
law, or judgment or contract that is obviously unjust negates the fundamental principles of Conflict of
Laws.48
Applying the foregoing, even if the laws of the Netherlands neither enforce a parent’s obligation to
support his child nor penalize the noncompliance therewith, such obligation is still duly enforceable in
the Philippines because it would be of great injustice to the child to be denied of financial support
when the latter is entitled thereto.
We emphasize, however, that as to petitioner herself, respondent is no longer liable to support his
former wife, in consonance with the ruling in San Luis v. San Luis,49 to wit:
As to the effect of the divorce on the Filipino wife, the Court ruled that she should no longerbe
considered marriedto the alien spouse. Further, she should not be required to perform her marital
duties and obligations. It held:
To maintain, as private respondent does, that, under our laws, petitioner has to be considered still
married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the
Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and
fidelity, and render support to private respondent. The latter should not continue to be one of her heirs
49
with possible rights to conjugal property. She should not be discriminated against in her own country if SECTION 24. Prescriptive Period. – Acts falling under Sections 5(a) to 5(f) shall prescribe in twenty
the ends of justice are to be served. (Emphasis added)50 (20) years. Acts falling under Sections 5(g) to 5(I) shall prescribe in ten (10) years.

Based on the foregoing legal precepts, we find that respondent may be made liable under Section
5(e) and (i) of R.A. No. 9262 for unjustly refusing or failing to give support topetitioner’s son, to wit:
SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against
women and their children is committed through any of the following acts:
xxxx
(e) Attempting to compel or compelling the woman or her child to engage in conduct which the
woman or her child has the right to desist from or desist from conduct which the woman or her child
has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom of
movement or conduct by force or threat of force, physical or other harm or threat of physical or other
harm, or intimidation directed against the woman or child. This shall include, butnot limited to, the
following acts committed with the purpose or effect of controlling or restricting the woman's or her
child's movement or conduct:
The act of denying support to a child under Section 5(e)(2) and (i) of R.A. No. 9262 is a continuing
offense,53 which started in 1995 but is still ongoing at present. Accordingly, the crime charged in the
instant case has clearly not prescribed.
Given, however, that the issue on whether respondent has provided support to petitioner’s child calls
for an examination of the probative value of the evidence presented, and the truth and falsehood of
facts being admitted, we hereby remand the determination of this issue to the RTC-Cebu which has
jurisdiction over the case.
WHEREFORE, the petition is GRANTED. The Orders dated February 19, 2010 and September 1,
2010, respectively, of the Regional Trial Court of the City of Cebu are hereby REVERSED and SET
ASIDE. The case is REMANDED to the same court to conduct further proceedings based on the
merits of the case.
SO ORDERED.

xxxx

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

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

Under the aforesaid special law, the deprivation or denial of financial support to the child is
considered anact of violence against women and children.

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

Finally, we do not agree with respondent’s argument that granting, but not admitting, that there is a
legal basis for charging violation of R.A. No. 9262 in the instant case, the criminal liability has been
extinguished on the ground of prescription of crime52 under Section 24 of R.A. No. 9262, which
provides that:
50
51
 ARTICLE 15 - NATIONAL THEORY
13. G.R. No. L-68470 October 8, 1985
ALICE REYES VAN DORN, petitioner,
vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court of the
National Capital Region Pasay City and RICHARD UPTON respondents.
MELENCIO-HERRERA, J.:\
In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside the
Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P, issued by
respondent Judge, which denied her Motion to Dismiss said case, and her Motion for Reconsideration
of the Dismissal Order, respectively.
The basic background facts are that petitioner is a citizen of the Philippines while private respondent
is a citizen of the United States; that they were married in Hongkong in 1972; that, after the marriage,
they established their residence in the Philippines; that they begot two children born on April 4, 1973
and December 18, 1975, respectively; that the parties were divorced in Nevada, United States, in
1982; and that petitioner has re-married also in Nevada, this time to Theodore Van Dorn.
Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the
Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's business in Ermita, Manila,
(the Galleon Shop, for short), is conjugal property of the parties, and asking that petitioner be ordered
to render an accounting of that business, and that private respondent be declared with right to
manage the conjugal property. Petitioner moved to dismiss the case on the ground that the cause of
action is barred by previous judgment in the divorce proceedings before the Nevada Court wherein
respondent had acknowledged that he and petitioner had "no community property" as of June 11,
1982. The Court below denied the Motion to Dismiss in the mentioned case on the ground that the
property involved is located in the Philippines so that the Divorce Decree has no bearing in the case.
The denial is now the subject of this certiorari proceeding.
Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to appeal.
certiorari and Prohibition are neither the remedies to question the propriety of an interlocutory order of
the trial Court. However, when a grave abuse of discretion was patently committed, or the lower Court
acted capriciously and whimsically, then it devolves upon this Court in a certiorari proceeding to
exercise its supervisory authority and to correct the error committed which, in such a case, is
equivalent to lack of jurisdiction. 1 Prohibition would then lie since it would be useless and a waste of
time to go ahead with the proceedings. 2 Weconsider the petition filed in this case within the
exception, and we have given it due course.
For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in
the Philippines.
Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property
because of the representation he made in the divorce proceedings before the American Court that
they had no community of property; that the Galleon Shop was not established through conjugal
funds, and that respondent's claim is barred by prior judgment.
For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail
over the prohibitive laws of the Philippines and its declared national policy; that the acts and
declaration of a foreign Court cannot, especially if the same is contrary to public policy, divest
Philippine Courts of jurisdiction to entertain matters within its jurisdiction.
For the resolution of this case, it is not necessary to determine whether the property relations
between petitioner and private respondent, after their marriage, were upon absolute or relative
community property, upon complete separation of property, or upon any other regime. The pivotal fact
in this case is the Nevada divorce of the parties.
The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who
appeared in person before the Court during the trial of the case. It also obtained jurisdiction over
private respondent who, giving his address as No. 381 Bush Street, San Francisco, California,
authorized his attorneys in the divorce case, Karp & Gradt Ltd., to agree to the divorce on the ground
of incompatibility in the understanding that there were neither community property nor community
obligations. 3 As explicitly stated in the Power of Attorney he executed in favor of the law firm of KARP
& GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in the divorce proceedings:
xxx xxx xxx
You are hereby authorized to accept service of Summons, to file an Answer, appear
on my behalf and do an things necessary and proper to represent me, without
further contesting, subject to the following:
1. That my spouse seeks a divorce on the ground of incompatibility.
2. That there is no community of property to be adjudicated by the Court.
3. 'I'hat there are no community obligations to be adjudicated by the court.
xxx xxx xxx 4
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. What he is contending in
52
this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to
local law and public policy.

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only
Philippine nationals are covered by the policy against absolute divorces the same being considered
contrary to our concept of public police and morality. However, aliens may obtain divorces abroad,
which may be recognized in the Philippines, provided they are valid according to their national
law. 6 In this case, the divorce in Nevada released private respondent from the marriage from the
standards of American law, under which divorce dissolves the marriage. As stated by the Federal
Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:

The purpose and effect of a decree of divorce from the bond of matrimony by a
court of competent jurisdiction are to change the existing status or domestic relation
of husband and wife, and to free them both from the bond. The marriage tie when
thus severed as to one party, ceases to bind either. A husband without a wife, or a
wife without a husband, is unknown to the law. When the law provides, in the
nature of a penalty. that the guilty party shall not marry again, that party, as well as
the other, is still absolutely freed from the bond of the former marriage.

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as petitioner's husband entitled to exercise control
over conjugal assets. As he is bound by the Decision of his own country's Court, which validly
exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own
representation before said Court from asserting his right over the alleged conjugal property.

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

WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the
Complaint filed in Civil Case No. 1075-P of his Court.

Without costs.

SO ORDERED.

Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Patajo, JJ., concur.

53

14. 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
54
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.
55
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
56
comity) is when the foreign law will work an injustice or injury to the people or residents of the forum. The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the
Consequently since to recognize the absolute divorce as valid on the part of the husband would be husband was an American can with a Filipino wife because in said case the validity of the divorce
injurious or prejudicial to the Filipino wife whose marriage would be still valid under her national law, it insofar as the Filipino wife is concerned was NEVER put in issue.
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.

57

15. G.R. No. 138322 October 2, 2001
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner,
vs.
REDERICK A. RECIO, respondents.
PANGANIBAN, J.:
A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is
valid according to the national law of the foreigner. However, the divorce decree and the governing
personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take
judicial notice of foreign laws and judgment; hence, like any other facts, both the divorce decree and
the national law of the alien must be alleged and proven according to our law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the January
7, 1999 Decision1 and the March 24, 1999 Order2 of the Regional Trial Court of Cabanatuan City,
Branch 28, in Civil Case No. 3026-AF. The assailed Decision disposed as follows:
"WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A.
Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved and both parties
can now remarry under existing and applicable laws to any and/or both parties."3
The assailed Order denied reconsideration of the above-quoted Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal,
on March 1, 1987.4 They lived together as husband and wife in Australia. On May 18, 1989,5 a decree
of divorce, purportedly dissolving the marriage, was issued by an Australian family court.
On June 26, 1992, respondent became an Australian citizen, as shown by a "Certificate of Australian
Citizenship" issued by the Australian government.6 Petitioner – a Filipina – and respondent were
married on January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan City.7 In
their application for a marriage license, respondent was declared as "single" and "Filipino."8
Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolution
of their marriage. While the two were still in Australia, their conjugal assets were divided on May 16,
1996, in accordance with their Statutory Declarations secured in Australia.9
On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage10 in the court a
quo, on the ground of bigamy – respondent allegedly had a prior subsisting marriage at the time he
married her on January 12, 1994. She claimed that she learned of respondent's marriage to Editha
Samson only in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his prior
marriage and its subsequent dissolution.11 He contended that his first marriage to an Australian citizen
had been validly dissolved by a divorce decree obtained in Australian in 1989;12 thus, he was legally
capacitated to marry petitioner in 1994.1âwphi1.nêt
On July 7, 1998 – or about five years after the couple's wedding and while the suit for the declaration
of nullity was pending – respondent was able to secure a divorce decree from a family court in
Sydney, Australia because the "marriage ha[d] irretrievably broken down."13
Respondent prayed in his Answer that the Complained be dismissed on the ground that it stated no
cause of action.14 The Office of the Solicitor General agreed with respondent.15 The court marked and
admitted the documentary evidence of both parties.16 After they submitted their respective
memoranda, the case was submitted for resolution.17
Thereafter, the trial court rendered the assailed Decision and Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the ground that the divorce issued in Australia was
valid and recognized in the Philippines. It deemed the marriage ended, but not on the basis of any
defect in an essential element of the marriage; that is, respondent's alleged lack of legal capacity to
remarry. Rather, it based its Decision on the divorce decree obtained by respondent. The Australian
divorce had ended the marriage; thus, there was no more martial union to nullify or annual.
Hence, this Petition.18
Issues
Petitioner submits the following issues for our consideration:
"I
The trial court gravely erred in finding that the divorce decree obtained in Australia by the
respondent ipso facto terminated his first marriage to Editha Samson thereby capacitating
him to contract a second marriage with the petitioner.
"2
The failure of the respondent, who is now a naturalized Australian, to present a certificate of
legal capacity to marry constitutes absence of a substantial requisite voiding the petitioner'
marriage to the respondent.
58
 "3
The trial court seriously erred in the application of Art. 26 of the Family Code in this case.
"4
The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and
53 of the Family Code as the applicable provisions in this case.
"5
The trial court gravely erred in pronouncing that the divorce gravely erred in pronouncing
that the divorce decree obtained by the respondent in Australia ipso facto capacitated the
parties to remarry, without first securing a recognition of the judgment granting the divorce
decree before our courts."19
The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two pivotal
ones: (1) whether the divorce between respondent and Editha Samson was proven, and (2) whether
respondent was proven to be legally capacitated to marry petitioner. Because of our ruling on these
two, there is no more necessity to take up the rest.
The Court's Ruling
The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha Samson
Petitioner assails the trial court's recognition of the divorce between respondent and Editha Samson.
Citing Adong v. Cheong Seng Gee,20 petitioner argues that the divorce decree, like any other foreign
judgment, may be given recognition in this jurisdiction only upon proof of the existence of (1) the
foreign law allowing absolute divorce and (2) the alleged divorce decree itself. She adds that
respondent miserably failed to establish these elements.
Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages
solemnized abroad are governed by the law of the place where they were celebrated (the lex loci
celebrationist). In effect, the Code requires the presentation of the foreign law to show the conformity
of the marriage in question to the legal requirements of the place where the marriage was performed.
At the outset, we lay the following basic legal principles as the take-off points for our discussion.
Philippine law does not provide for absolute divorce; hence, our courts cannot grant it.21 A marriage
between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles
1522 and 1723 of the Civil Code.24 In mixed marriages involving a Filipino and a foreigner, Article 2625 of
the Family Code allows the former to contract a subsequent marriage in case the divorce is "validly
obtained abroad by the alien spouse capacitating him or her to remarry."26 A divorce obtained abroad
by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with
their respective national laws.27
A comparison between marriage and divorce, as far as pleading and proof are concerned, can be
made. Van Dorn v. Romillo Jr. decrees that "aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid according to their national law."28 Therefore,
before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the
divorce as a fact and demonstrate its conformity to the foreign law allowing it.29 Presentation solely of
the divorce decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply with
the registration requirements under Articles 11, 13 and 52 of the Family Code. These articles read as
follows:
"ART. 11. Where a marriage license is required, each of the contracting parties shall file
separately a sworn application for such license with the proper local civil registrar which shall
specify the following:
xxx xxx xxx
"(5) If previously married, how, when and where the previous marriage was dissolved or
annulled;
xxx xxx xxx
"ART. 13. In case either of the contracting parties has been previously married, the applicant
shall be required to furnish, instead of the birth of baptismal certificate required in the last
preceding article, the death certificate of the deceased spouse or the judicial decree of
annulment or declaration of nullity of his or her previous marriage. x x x.
"ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and
distribution of the properties of the spouses, and the delivery of the children's presumptive
legitimes shall be recorded in the appropriate civil registry and registries of property;
otherwise, the same shall not affect their persons."
Respondent, on the other hand, argues that the Australian divorce decree is a public document – a
written official act of an Australian family court. Therefore, it requires no further proof of its authenticity
and due execution.
59
Respondent is getting ahead of himself. Before a foreign judgment is given presumptive evidentiary
value, the document must first be presented and admitted in evidence.30 A divorce obtained abroad is
proven by the divorce decree itself. Indeed the best evidence of a judgment is the judgment
itself.31 The decree purports to be a written act or record of an act of an officially body or tribunal of a
foreign country.32
Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a
public or official record of a foreign country by either (1) an official publication or (2) a copy thereof
attested33 by the officer having legal custody of the document. If the record is not kept in the
Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or
consular officer in the Philippine foreign service stationed in the foreign country in which the record is
kept and (b) authenticated by the seal of his office.34
The divorce decree between respondent and Editha Samson appears to be an authentic one issued
by an Australian family court.35 However, appearance is not sufficient; compliance with the
aforemetioned rules on evidence must be demonstrated.
Fortunately for respondent's cause, when the divorce decree of May 18, 1989 was submitted in
evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had not
been registered in the Local Civil Registry of Cabanatuan City.36 The trial court ruled that it was
admissible, subject to petitioner's qualification.37Hence, it was admitted in evidence and accorded
weight by the judge. Indeed, petitioner's failure to object properly rendered the divorce decree
admissible as a written act of the Family Court of Sydney, Australia.38
Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary; respondent
was no longer bound by Philippine personal laws after he acquired Australian citizenship in
1992.39 Naturalization is the legal act of adopting an alien and clothing him with the political and civil
rights belonging to a citizen.40 Naturalized citizens, freed from the protective cloak of their former
states, don the attires of their adoptive countries. By becoming an Australian, respondent severed his
allegiance to the Philippines and the vinculum juris that had tied him to Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian divorce law falls upon petitioner, because
she is the party challenging the validity of a foreign judgment. He contends that petitioner was
satisfied with the original of the divorce decree and was cognizant of the marital laws of Australia,
because she had lived and worked in that country for quite a long time. Besides, the Australian
divorce law is allegedly known by Philippine courts: thus, judges may take judicial notice of foreign
laws in the exercise of sound discretion.
We are not persuaded. The burden of proof lies with "the party who alleges the existence of a fact or
thing necessary in the prosecution or defense of an action."41 In civil cases, plaintiffs have the burden
of proving the material allegations of the complaint when those are denied by the answer; and
defendants have the burden of proving the material allegations in their answer when they introduce
new matters.42 Since the divorce was a defense raised by respondent, the burden of proving the
pertinent Australian law validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws.43 Like any
other facts, they must be alleged and proved. Australian marital laws are not among those matters
that judges are supposed to know by reason of their judicial function.44 The power of judicial notice
must be exercised with caution, and every reasonable doubt upon the subject should be resolved in
the negative.
Second Issue:
Respondent's Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legally
incapacitated to marry her in 1994.
Hence, she concludes that their marriage was void ab initio.
Respondent replies that the Australian divorce decree, which was validly admitted in evidence,
adequately established his legal capacity to marry under Australian law.
Respondent's contention is untenable. In its strict legal sense, divorce means the legal dissolution of
a lawful union for a cause arising after marriage. But divorces are of different types. The two basic
ones are (1) absolute divorce or a vinculo matrimonii and (2) limited divorce or a mensa et thoro. The
first kind terminates the marriage, while the second suspends it and leaves the bond in full
force.45 There is no showing in the case at bar which type of divorce was procured by respondent.
Respondent presented a decree nisi or an interlocutory decree – a conditional or provisional
judgment of divorce. It is in effect the same as a separation from bed and board, although an absolute
divorce may follow after the lapse of the prescribed period during which no reconciliation is effected.46
Even after the divorce becomes absolute, the court may under some foreign statutes and practices,
still restrict remarriage. Under some other jurisdictions, remarriage may be limited by statute; thus,
the guilty party in a divorce which was granted on the ground of adultery may be prohibited from
remarrying again. The court may allow a remarriage only after proof of good behavior.47
On its face, the herein Australian divorce decree contains a restriction that reads:
"1. A party to a marriage who marries again before this decree becomes absolute (unless
the other party has died) commits the offence of bigamy."48
This quotation bolsters our contention that the divorce obtained by respondent may have been
restricted. It did not absolutely establish his legal capacity to remarry according to his national law.
Hence, we find no basis for the ruling of the trial court, which erroneously assumed that the Australian
divorce ipso facto restored respondent's capacity to remarry despite the paucity of evidence on this
matter.
60
We also reject the claim of respondent that the divorce decree raises a disputable presumption or certificates, which were both obtained in the Philippines, one in Malabon, Metro Manila dated March
presumptive evidence as to his civil status based on Section 48, Rule 3949 of the Rules of Court, for 1, 1987 and the other, in Cabanatuan City dated January 12, 1994.
the simple reason that no proof has been presented on the legal effects of the divorce decree
obtained under Australian laws. WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the case to
the court a quofor the purpose of receiving evidence which conclusively show respondent's legal
Significance of the Certificate of Legal Capacity capacity to marry petitioner; and failing in that, of declaring the parties' marriage void on the ground of
bigamy, as above discussed. No costs.
Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was
not submitted together with the application for a marriage license. According to her, its absence is SO ORDERED.
proof that respondent did not have legal capacity to remarry.
Melo, Puno, Vitug, and Sandoval-Gutierrez, JJ., concur.
We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the
party concerned. The certificate mentioned in Article 21 of the Family Code would have been
sufficient to establish the legal capacity of respondent, had he duly presented it in court. A duly
authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the part of
the alien applicant for a marriage license.50

As it is, however, there is absolutely no evidence that proves respondent's legal capacity to marry
petitioner. A review of the records before this Court shows that only the following exhibits were
presented before the lower court: (1) for petitioner: (a) Exhibit "A" – Complaint;51 (b) Exhibit "B" –
Certificate of Marriage Between Rederick A. Recto (Filipino-Australian) and Grace J. Garcia (Filipino)
on January 12, 1994 in Cabanatuan City, Nueva Ecija;52 (c) Exhibit "C" – Certificate of Marriage
Between Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1, 1987 in
Malabon, Metro Manila;53 (d) Exhibit "D" – Office of the City Registrar of Cabanatuan City Certification
that no information of annulment between Rederick A. Recto and Editha D. Samson was in its
records;54 and (e) Exhibit "E" – Certificate of Australian Citizenship of Rederick A. Recto;55 (2) for
respondent: (Exhibit "1" – Amended Answer;56 (b) Exhibit "S" – Family Law Act 1975 Decree Nisi of
Dissolution of Marriage in the Family Court of Australia;57 (c) Exhibit "3" – Certificate of Australian
Citizenship of Rederick A. Recto;58 (d) Exhibit "4" – Decree Nisi of Dissolution of Marriage in the
Family Court of Australia Certificate;59 and Exhibit "5" – Statutory Declaration of the Legal Separation
Between Rederick A. Recto and Grace J. Garcia Recio since October 22, 1995.60

Based on the above records, we cannot conclude that respondent, who was then a naturalized
Australian citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree with
petitioner's contention that the court a quo erred in finding that the divorce decree ipso facto clothed
respondent with the legal capacity to remarry without requiring him to adduce sufficient evidence to
show the Australian personal law governing his status; or at the very least, to prove his legal capacity
to contract the second marriage.

Neither can we grant petitioner's prayer to declare her marriage to respondent null and void on the
ground of bigamy. After all, it may turn out that under Australian law, he was really capacitated to
marry petitioner as a direct result of the divorce decree. Hence, we believe that the most judicious
course is to remand this case to the trial court to receive evidence, if any, which show petitioner's
legal capacity to marry petitioner. Failing in that, then the court a quo may declare a nullity of the
parties' marriage on the ground of bigamy, there being already in evidence two existing marriage

61

16. G.R. No. 124862 December 22, 1998
FE D. QUITA, petitioner,
vs.
COURT OF APPEALS and BLANDINA DANDAN, * respondents.
BELLOSILLO, J.:
FE D. QUITA and Arturo T. Padlan, both Filipinos, were married in the Philippines on 18 May 1941.
They were not however blessed with children. Somewhere along the way their relationship soured.
Eventually Fe sued Arturo for divorce in San Francisco, California, U.S.A. She submitted in the
divorce proceedings a private writing dated 19 July 1950 evidencing their agreement to live
separately from each other and a settlement of their conjugal properties. On 23 July 1954 she
obtained a final judgment of divorce. Three (3) weeks thereafter she married a certain Felix Tupaz in
the same locality but their relationship also ended in a divorce. Still in the U.S.A., she married for the
third time, to a certain Wernimont.
On 16 April 1972 Arturo died. He left no will. On 31 August 1972 Lino Javier Inciong filed a petition
with the Regional Trial Court of Quezon City for issuance of letters of administration concerning the
estate of Arturo in favor of the Philippine Trust Company. Respondent Blandina Dandan (also referred
to as Blandina Padlan), claiming to be the surviving spouse of Arturo Padlan, and Claro, Alexis,
Ricardo, Emmanuel, Zenaida and Yolanda, all surnamed Padlan, named in the children of Arturo
Padlan opposed the petition and prayed for the appointment instead of Atty. Leonardo Casaba, which
was resolved in favor of the latter. Upon motion of the oppositors themselves, Atty. Cabasal was later
replaced by Higino Castillon. On 30 April 1973 the oppositors (Blandina and Padlan children)
submitted certified photocopies of the 19 July 1950 private writing and the final judgment of divorce
between petitioner and Arturo. Later Ruperto T. Padlan, claiming to be the sole surviving brother of
the deceased Arturo, intervened.
On 7 October 1987 petitioner moved for the immediate declaration of heirs of the decedent and the
distribution of his estate. At the scheduled hearing on 23 October 1987, private respondent as well as
the six (6) Padlan children and Ruperto failed to appear despite due notice. On the same day, the trial
court required the submission of the records of birth of the Padlan children within ten (10) days from
receipt thereof, after which, with or without the documents, the issue on the declaration of heirs would
be considered submitted for resolution. The prescribed period lapsed without the required documents
being submitted.
The trial court invoking Tenchavez v. Escaño 1 which held that "a foreign divorce between Filipino
citizens sought and decreed after the effectivity of the present Civil Code (Rep. Act 386) was
not entitled to recognition as valid in this jurisdiction," 2 disregarded the divorce between
petitioner and Arturo. Consecuently, it expressed the view that their marriage subsisted until
the death of Arturo in 1972. Neither did it consider valid their extrajudicial settlement of
conjugal properties due to lack of judicial approval. 3On the other hand, it opined that there
was no showing that marriage existed between private respondent and Arturo, much less was
it shown that the alleged Padlan children had been acknowledged by the deceased as his
children with her. As regards Ruperto, it found that he was a brother of Arturo. On 27
November 1987 4 only petitioner and Ruperto were declared the intestate heirs of Arturo.
Accordingly, equal adjudication of the net hereditary estate was ordered in favor of the two
intestate heirs. 5
On motion for reconsideration, Blandina and the Padlan children were allowed to present
proofs that the recognition of the children by the deceased as his legitimate children, except
Alexis who was recognized as his illegitimate child, had been made in their respective records
of birth. Thus on 15 February 1988 6 partial reconsideration was granted declaring the Padlan
children, with the exception of Alexis, entitled to one-half of the estate to the exclusion of
Ruperto Padlan, and petitioner to the other half. 7 Private respondent was not declared an heir.
Although it was stated in the aforementioned records of birth that she and Arturo were
married on 22 April 1947, their marriage was clearly void since it was celebrated during the
existence of his previous marriage to petitioner.
In their appeal to the Court of Appeals, Blandina and her children assigned as one of the
errors allegedly committed by the trial court the circumstance that the case was decided
without a hearing, in violation of Sec. 1, Rule 90, of the Rules of Court, which provides that if
there is a controversy before the court as to who are the lawful heirs of the deceased person
or as to the distributive shares to which each person is entitled under the law, the controversy
shall be heard and decided as in ordinary cases.
Respondent appellate court found this ground alone sufficient to sustain the appeal; hence,
on 11 September 1995 it declared null and void the 27 November 1987 decision and 15
February 1988 order of the trial court, and directed the remand of the case to the trial court for
further proceedings. 8 On 18 April 1996 it denied reconsideration. 9
Should this case be remanded to the lower court for further proceedings? Petitioner insists
that there is no need because, first, no legal or factual issue obtains for resolution either as to
the heirship of the Padlan children or as to the decedent; and, second, the issue as to who
between petitioner and private respondent is the proper hier of the decedent is one of law
which can be resolved in the present petition based on establish facts and admissions of the
parties.
We cannot sustain petitioner. The provision relied upon by respondent court is clear: If there
is a controversy before the court as to who are the lawful heirs of the deceased person or as
to the distributive shares to which each person is entitled under the law, the controversy shall
be heard and decided as in ordinary cases.
We agree with petitioner that no dispute exists either as to the right of the six (6) Padlan
children to inherit from the decedent because there are proofs that they have been duly
acknowledged by him and petitioner herself even recognizes them as heirs of Arturo
Padlan; 10 nor as to their respective hereditary shares. But controversy remains as to who is
62
the legitimate surviving spouse of Arturo. The trial court, after the parties other than petitioner
failed to appear during the scheduled hearing on 23 October 1987 of the motion for immediate
declaration of heirs and distribution of estate, simply issued an order requiring the
submission of the records of birth of the Padlan children within ten (10) days from receipt
thereof, after which, with or without the documents, the issue on declaration of heirs would be
deemed submitted for resolution.
We note that in her comment to petitioner's motion private respondent raised, among others,
the issue as to whether petitioner was still entitled to inherit from the decedent considering
that she had secured a divorce in the U.S.A. and in fact had twice remarried. She also invoked
the above quoted procedural rule. 11 To this, petitioner replied that Arturo was a Filipino and as
such remained legally married to her in spite of the divorce they obtained. 12 Reading between
the lines, the implication is that petitioner was no longer a Filipino citizen at the time of her
divorce from Arturo. This should have prompted the trial court to conduct a hearing to
establish her citizenship. The purpose of a hearing is to ascertain the truth of the matters in
issue with the aid of documentary and testimonial evidence as well as the arguments of the
parties either supporting or opposing the evidence. Instead, the lower court perfunctorily
settled her claim in her favor by merely applying the ruling in Tenchavez v. Escaño.
Then in private respondent's motion to set aside and/or reconsider the lower court's decision
she stressed that the citizenship of petitioner was relevant in the light of the ruling in Van
Dorn v. Romillo Jr. 13 that aliens may obtain divorces abroad, which may be recognized in the
Philippines, provided they are valid according to their national law. She prayed therefore that
the case be set for hearing. 14 Petitioner opposed the motion but failed to squarely address the
issue on her citizenship. 15 The trial court did not grant private respondent's prayer for a
hearing but proceeded to resolve her motion with the finding that both petitioner and Arturo
were "Filipino citizens and were married in the Philippines." 16 It maintained that their divorce
obtained in 1954 in San Francisco, California, U.S.A., was not valid in Philippine jurisdiction.
We deduce that the finding on their citizenship pertained solely to the time of their marriage as
the trial court was not supplied with a basis to determine petitioner's citizenship at the time of
their divorce. The doubt persisted as to whether she was still a Filipino citizen when their
divorce was decreed. The trial court must have overlooked the materiality of this aspect. Once
proved that she was no longer a Filipino citizen at the time of their divorce, Van Dorn would
become applicable and petitioner could very well lose her right to inherit from Arturo.
Respondent again raised in her appeal the issue on petitioner's citizenship; 17 it did not merit
enlightenment however from petitioner. 18 In the present proceeding, petitioner's citizenship is
brought anew to the fore by private respondent. She even furnishes the Court with the
transcript of stenographic notes taken on 5 May 1995 during the hearing for the reconstitution
of the original of a certain transfer certificate title as well as the issuance of new owner's
duplicate copy thereof before another trial court. When asked whether she was an American
citizen petitioner answered that she was since 1954. 19 Significantly, the decree of divorce of
petitioner and Arturo was obtained in the same year. Petitioner however did not bother to file a
reply memorandum to erase the uncertainty about her citizenship at the time of their divorce,
a factual issue requiring hearings to be conducted by the trial court. Consequently,
respondent appellate court did not err in ordering the case returned to the trial court for
further proceedings.
We emphasize however that the question to be determined by the trial court should be limited
only to the right of petitioner to inherit from Arturo as his surviving spouse. Private
respondent's claim to heirship was already resolved by the trial court. She and Arturo were
married on 22 April 1947 while the prior marriage of petitioner and Arturo was subsisting
thereby resulting in a bigamous marriage considered void from the beginning under Arts. 80
and 83 of the Civil Code. Consequently, she is not a surviving spouse that can inherit from
him as this status presupposes a legitimate relationship. 20
As regards the motion of private respondent for petitioner and a her counsel to be declared in
contempt of court and that the present petition be dismissed for forum shopping, 21 the same
lacks merit. For forum shopping to exist the actions must involve the same transactions and
same essential facts and circumstances. There must also be identical causes of action,
subject matter and issue. 22 The present petition deals with declaration of heirship while the
subsequent petitions filed before the three (3) trial courts concern the issuance of new
owner's duplicate copies of titles of certain properties belonging to the estate of Arturo.
Obviously, there is no reason to declare the existence of forum shopping.
WHEREFORE, the petition is DENIED. The decision of respondent Court of Appeals ordering
the remand of the case to the court of origin for further proceedings and declaring null and
void its decision holding petitioner Fe D. Quita and Ruperto T. Padlan as intestate heirs is
AFFIRMED. The order of the appellate court modifying its previous decision by granting one-
half (1/2) of the net hereditary estate to the Padlan children, namely, Claro, Ricardo,
Emmanuel, Zenaida and Yolanda, with the exception of Alexis, all surnamed Padlan, instead of
Arturo's brother Ruperto Padlan, is likewise AFFIRMED. The Court however emphasizes that
the reception of evidence by the trial court should he limited to the hereditary rights of
petitioner as the surviving spouse of Arturo Padlan.
The motion to declare petitioner and her counsel in contempt of court and to dismiss the
present petition for forum shopping is DENIED.
SO ORDERED.
Puno, Mendoza and Martinez, JJ., concur.
63

17. G.R. No. 162580 January 27, 2006
ELMAR O. PEREZ, Petitioner,
vs.
COURT OF APPEALS, Fifth Division, TRISTAN A. CATINDIG and LILY GOMEZ-
CATINDIG, Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for certiorari and prohibition under Rule 65 of the Rules of Court assails the July 25,
2003 Decision1 of the Court of Appeals in CA-G.R. SP No. 74456 which set aside and declared as
null and void the September 30, 2002 Order2 of the Regional Trial Court of Quezon City, Branch 84,
granting petitioner’s motion for leave to file intervention and admitting the Complaint-in-
Intervention3 in Civil Case No. Q-01-44847; and its January 23, 2004 Resolution4 denying the motion
for reconsideration.
Private respondent Tristan A. Catindig married Lily Gomez Catindig5 twice on May 16, 1968. The first
marriage ceremony was celebrated at the Central Methodist Church at T.M. Kalaw Street, Ermita,
Manila while the second took place at the Lourdes Catholic Church in La Loma, Quezon City. The
marriage produced four children.
Several years later, the couple encountered marital problems that they decided to separate from each
other. Upon advice of a mutual friend, they decided to obtain a divorce from the Dominican Republic.
Thus, on April 27, 1984, Tristan and Lily executed a Special Power of Attorney addressed to the
Judge of the First Civil Court of San Cristobal, Dominican Republic, appointing an attorney-in-fact to
institute a divorce action under its laws.6
Thereafter, on April 30, 1984, the private respondents filed a joint petition for dissolution of conjugal
partnership with the Regional Trial Court of Makati. On June 12, 1984, the civil court in the Dominican
Republic ratified the divorce by mutual consent of Tristan and Lily. Subsequently, on June 23, 1984,
the Regional Trial Court of Makati City, Branch 133, ordered the complete separation of properties
between Tristan and Lily.
On July 14, 1984, Tristan married petitioner Elmar O. Perez in the State of Virginia in the United
States7 and both lived as husband and wife until October 2001. Their union produced one offspring.8
During their cohabitation, petitioner learned that the divorce decree issued by the court in the
Dominican Republic which "dissolved" the marriage between Tristan and Lily was not recognized in
the Philippines and that her marriage to Tristan was deemed void under Philippine law. When she
confronted Tristan about this, the latter assured her that he would legalize their union after he obtains
an annulment of his marriage with Lily. Tristan further promised the petitioner that he would adopt
their son so that he would be entitled to an equal share in his estate as that of each of his children
with Lily.9
On August 13, 2001, Tristan filed a petition for the declaration of nullity of his marriage to Lily with the
Regional Trial Court of Quezon City, docketed as Case No. Q-01-44847.
Subsequently, petitioner filed a Motion for Leave to File Intervention10 claiming that she has a legal
interest in the matter in litigation because she knows certain information which might aid the trial court
at a truthful, fair and just adjudication of the annulment case, which the trial court granted on
September 30, 2002. Petitioner’s complaint-in-intervention was also ordered admitted.
Tristan filed a petition for certiorari and prohibition with the Court of Appeals seeking to annul the
order dated September 30, 2002 of the trial court. The Court of Appeals granted the petition and
declared as null and void the September 30, 2002 Order of the trial court granting the motion for
leave to file intervention and admitting the complaint-in-intervention.
Petitioner’s motion for reconsideration was denied, hence this petition for certiorari and prohibition
filed under Rule 65 of the Rules of Court. Petitioner contends that the Court of Appeals gravely
abused its discretion in disregarding her legal interest in the annulment case between Tristan and Lily.
The petition lacks merit.
Ordinarily, the proper recourse of an aggrieved party from a decision of the Court of Appeals is a
petition for review on certiorari under Rule 45 of the Rules of Court. However, if the error subject of
the recourse is one of jurisdiction, or the act complained of was granted by a court with grave abuse
of discretion amounting to lack or excess of jurisdiction, as alleged in this case, the proper remedy is
a petition for certiorari under Rule 65 of the said Rules.11This is based on the premise that in issuing
the assailed decision and resolution, the Court of Appeals acted with grave abuse of discretion,
amounting to excess of lack of jurisdiction and there is no plain, speedy and adequate remedy in the
ordinary course of law. A remedy is considered plain, speedy, and adequate if it will promptly relieve
the petitioner from the injurious effect of the judgment and the acts of the lower court.12
It is therefore incumbent upon the petitioner to establish that the Court of Appeals acted with grave
abuse of discretion amounting to excess or lack of jurisdiction when it promulgated the assailed
decision and resolution.
We have previously ruled that grave abuse of discretion may arise when a lower court or tribunal
violates or contravenes the Constitution, the law or existing jurisprudence. By grave abuse of
discretion is meant, such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction. The abuse of discretion must be grave as where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility and must be so patent and gross as to
amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at
all in contemplation of law.13 The word "capricious," usually used in tandem with the term "arbitrary,"
conveys the notion of willful and unreasoning action. Thus, when seeking the corrective hand of
certiorari, a clear showing of caprice and arbitrariness in the exercise of discretion is imperative.14
64
The Rules of Court laid down the parameters before a person, not a party to a case can intervene,
thus:
Who may intervene. — A person who has a legal interest in the matter in litigation, or in the success
of either of the parties, or an interest against both, or is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the court or of an officer thereof may, with
leave of court, be allowed to intervene in the action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and
whether or not the intervenor’s rights may be fully protected in a separate proceeding.15
The requirements for intervention are: [a] legal interest in the matter in litigation; and [b] consideration
must be given as to whether the adjudication of the original parties may be delayed or prejudiced, or
whether the intervenor’s rights may be protected in a separate proceeding or not.16
Legal interest, which entitles a person to intervene, must be in the matter in litigation and of such
direct and immediate character that the intervenor will either gain or lose by direct legal operation and
effect of the judgment.17Such interest must be actual, direct and material, and not simply contingent
and expectant.18
Petitioner claims that her status as the wife and companion of Tristan for 17 years vests her with the
requisite legal interest required of a would-be intervenor under the Rules of Court.
Thus, petitioner’s claim that she is the wife of Tristan even if their marriage was celebrated abroad
lacks merit. Thus, petitioner never acquired the legal interest as a wife upon which her motion for
intervention is based.
Since petitioner’s motion for leave to file intervention was bereft of the indispensable requirement of
legal interest, the issuance by the trial court of the order granting the same and admitting the
complaint-in-intervention was attended with grave abuse of discretion. Consequently, the Court of
Appeals correctly set aside and declared as null and void the said order.
WHEREFORE, the petition is DISMISSED. The assailed Decision dated July 25, 2003 and
Resolution dated January 23, 2004 of the Court of Appeals in CA-G.R. SP No. 74456
are AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice

Petitioner’s claim lacks merit. Under the law, petitioner was never the legal wife of Tristan, hence her
claim of legal interest has no basis.

When petitioner and Tristan married on July 14, 1984, Tristan was still lawfully married to Lily. The
divorce decree that Tristan and Lily obtained from the Dominican Republic never dissolved the
marriage bond between them. It is basic that laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon citizens of the Philippines, even though
living abroad.19 Regardless of where a citizen of the Philippines might be, he or she will be governed
by Philippine laws with respect to his or her family rights and duties, or to his or her status, condition
and legal capacity. Hence, if a Filipino regardless of whether he or she was married here or abroad,
initiates a petition abroad to obtain an absolute divorce from spouse and eventually becomes
successful in getting an absolute divorce decree, the Philippines will not recognize such absolute
divorce.20

When Tristan and Lily married on May 18, 1968, their marriage was governed by the provisions of the
Civil Code21which took effect on August 30, 1950. In the case of Tenchavez v. Escano22 we held:

(1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of the
present Civil Code (Rep. Act No. 386), is not entitled to recognition as valid in this jurisdiction; and
neither is the marriage contracted with another party by the divorced consort, subsequently to the
foreign decree of divorce, entitled to validity in the country. (Emphasis added)

65

18. G.R. No. 133743 February 6, 2007
EDGAR SAN LUIS, Petitioner,
vs.
FELICIDAD SAN LUIS, Respondent.
x ---------------------------------------------------- x
G.R. No. 134029 February 6, 2007
RODOLFO SAN LUIS, Petitioner,
vs.
FELICIDAD SAGALONGOS alias FELICIDAD SAN LUIS, Respondent.
DECISION
YNARES-SANTIAGO, J.:
Before us are consolidated petitions for review assailing the February 4, 1998 Decision 1 of the Court
of Appeals in CA-G.R. CV No. 52647, which reversed and set aside the September 12, 1995 2 and
January 31, 1996 3Resolutions of the Regional Trial Court of Makati City, Branch 134 in SP. Proc. No.
M-3708; and its May 15, 1998 Resolution 4 denying petitioners’ motion for reconsideration.
The instant case involves the settlement of the estate of Felicisimo T. San Luis (Felicisimo), who was
the former governor of the Province of Laguna. During his lifetime, Felicisimo contracted three
marriages. His first marriage was with Virginia Sulit on March 17, 1942 out of which were born six
children, namely: Rodolfo, Mila, Edgar, Linda, Emilita and Manuel. On August 11, 1963, Virginia
predeceased Felicisimo.
Five years later, on May 1, 1968, Felicisimo married Merry Lee Corwin, with whom he had a son,
Tobias. However, on October 15, 1971, Merry Lee, an American citizen, filed a Complaint for
Divorce 5 before the Family Court of the First Circuit, State of Hawaii, United States of America
(U.S.A.), which issued a Decree Granting Absolute Divorce and Awarding Child Custody on
December 14, 1973. 6
On June 20, 1974, Felicisimo married respondent Felicidad San Luis, then surnamed Sagalongos,
before Rev. Fr. William Meyer, Minister of the United Presbyterian at Wilshire Boulevard, Los Angeles,
California, U.S.A. 7 He had no children with respondent but lived with her for 18 years from the time of
their marriage up to his death on December 18, 1992.
Thereafter, respondent sought the dissolution of their conjugal partnership assets and the settlement
of Felicisimo’s estate. On December 17, 1993, she filed a petition for letters of administration 8 before
the Regional Trial Court of Makati City, docketed as SP. Proc. No. M-3708 which was raffled to
Branch 146 thereof.
Respondent alleged that she is the widow of Felicisimo; that, at the time of his death, the decedent
was residing at 100 San Juanico Street, New Alabang Village, Alabang, Metro Manila; that the
decedent’s surviving heirs are respondent as legal spouse, his six children by his first marriage, and
son by his second marriage; that the decedent left real properties, both conjugal and exclusive,
valued at ₱30,304,178.00 more or less; that the decedent does not have any unpaid debts.
Respondent prayed that the conjugal partnership assets be liquidated and that letters of
administration be issued to her.
On February 4, 1994, petitioner Rodolfo San Luis, one of the children of Felicisimo by his first
marriage, filed a motion to dismiss 9 on the grounds of improper venue and failure to state a cause of
action. Rodolfo claimed that the petition for letters of administration should have been filed in the
Province of Laguna because this was Felicisimo’s place of residence prior to his death. He further
claimed that respondent has no legal personality to file the petition because she was only a mistress
of Felicisimo since the latter, at the time of his death, was still legally married to Merry Lee.
On February 15, 1994, Linda invoked the same grounds and joined her brother Rodolfo in seeking
the dismissal 10of the petition. On February 28, 1994, the trial court issued an Order 11 denying the two
motions to dismiss.
Unaware of the denial of the motions to dismiss, respondent filed on March 5, 1994 her
opposition 12 thereto. She submitted documentary evidence showing that while Felicisimo exercised
the powers of his public office in Laguna, he regularly went home to their house in New Alabang
Village, Alabang, Metro Manila which they bought sometime in 1982. Further, she presented the
decree of absolute divorce issued by the Family Court of the First Circuit, State of Hawaii to prove
that the marriage of Felicisimo to Merry Lee had already been dissolved. Thus, she claimed that
Felicisimo had the legal capacity to marry her by virtue of paragraph 2, 13 Article 26 of the Family
Code and the doctrine laid down in Van Dorn v. Romillo, Jr. 14
Thereafter, Linda, Rodolfo and herein petitioner Edgar San Luis, separately filed motions for
reconsideration from the Order denying their motions to dismiss. 15 They asserted that paragraph 2,
Article 26 of the Family Code cannot be given retroactive effect to validate respondent’s bigamous
marriage with Felicisimo because this would impair vested rights in derogation of Article 256 16 of the
Family Code.
On April 21, 1994, Mila, another daughter of Felicisimo from his first marriage, filed a motion to
disqualify Acting Presiding Judge Anthony E. Santos from hearing the case.
On October 24, 1994, the trial court issued an Order 17 denying the motions for reconsideration. It
ruled that respondent, as widow of the decedent, possessed the legal standing to file the petition and
that venue was properly laid. Meanwhile, the motion for disqualification was deemed moot and
academic 18 because then Acting Presiding Judge Santos was substituted by Judge Salvador S.
Tensuan pending the resolution of said motion.
66
Mila filed a motion for inhibition 19 against Judge Tensuan on November 16, 1994. On even date,
Edgar also filed a motion for reconsideration 20 from the Order denying their motion for
reconsideration arguing that it does not state the facts and law on which it was based.
On November 25, 1994, Judge Tensuan issued an Order 21 granting the motion for inhibition. The
case was re-raffled to Branch 134 presided by Judge Paul T. Arcangel.
On April 24, 1995, 22 the trial court required the parties to submit their respective position papers on
the twin issues of venue and legal capacity of respondent to file the petition. On May 5, 1995, Edgar
manifested 23 that he is adopting the arguments and evidence set forth in his previous motion for
reconsideration as his position paper. Respondent and Rodolfo filed their position papers on June
14, 24 and June 20, 25 1995, respectively.
On September 12, 1995, the trial court dismissed the petition for letters of administration. It held that,
at the time of his death, Felicisimo was the duly elected governor and a resident of the Province of
Laguna. Hence, the petition should have been filed in Sta. Cruz, Laguna and not in Makati City. It also
ruled that respondent was without legal capacity to file the petition for letters of administration
because her marriage with Felicisimo was bigamous, thus, void ab initio. It found that the decree of
absolute divorce dissolving Felicisimo’s marriage to Merry Lee was not valid in the Philippines and did
not bind Felicisimo who was a Filipino citizen. It also ruled that paragraph 2, Article 26 of the Family
Code cannot be retroactively applied because it would impair the vested rights of Felicisimo’s
legitimate children.
Respondent moved for reconsideration 26 and for the disqualification 27 of Judge Arcangel but said
motions were denied. 28
Respondent appealed to the Court of Appeals which reversed and set aside the orders of the trial
court in its assailed Decision dated February 4, 1998, the dispositive portion of which states:
WHEREFORE, the Orders dated September 12, 1995 and January 31, 1996 are hereby REVERSED
and SET ASIDE; the Orders dated February 28 and October 24, 1994 are REINSTATED; and the
records of the case is REMANDED to the trial court for further proceedings. 29
The appellante court ruled that under Section 1, Rule 73 of the Rules of Court, the term "place of
residence" of the decedent, for purposes of fixing the venue of the settlement of his estate, refers to
the personal, actual or physical habitation, or actual residence or place of abode of a person as
distinguished from legal residence or domicile. It noted that although Felicisimo discharged his
functions as governor in Laguna, he actually resided in Alabang, Muntinlupa. Thus, the petition for
letters of administration was properly filed in Makati City.
The Court of Appeals also held that Felicisimo had legal capacity to marry respondent by virtue of
paragraph 2, Article 26 of the Family Code and the rulings in Van Dorn v. Romillo, Jr. 30 and Pilapil v.
Ibay-Somera. 31 It found that the marriage between Felicisimo and Merry Lee was validly dissolved by
virtue of the decree of absolute divorce issued by the Family Court of the First Circuit, State of
Hawaii. As a result, under paragraph 2, Article 26, Felicisimo was capacitated to contract a
subsequent marriage with respondent. Thus –
With the well-known rule – express mandate of paragraph 2, Article 26, of the Family Code of the
Philippines, the doctrines in Van Dorn, Pilapil, and the reason and philosophy behind the enactment
of E.O. No. 227, — there is no justiciable reason to sustain the individual view — sweeping statement
— of Judge Arc[h]angel, that "Article 26, par. 2 of the Family Code, contravenes the basic policy of
our state against divorce in any form whatsoever." Indeed, courts cannot deny what the law grants. All
that the courts should do is to give force and effect to the express mandate of the law. The foreign
divorce having been obtained by the Foreigner on December 14, 1992, 32 the Filipino divorcee,
"shall x x x have capacity to remarry under Philippine laws". For this reason, the marriage between
the deceased and petitioner should not be denominated as "a bigamous marriage.
Therefore, under Article 130 of the Family Code, the petitioner as the surviving spouse can institute
the judicial proceeding for the settlement of the estate of the deceased. x x x 33
Edgar, Linda, and Rodolfo filed separate motions for reconsideration 34 which were denied by the
Court of Appeals.
On July 2, 1998, Edgar appealed to this Court via the instant petition for review on
certiorari. 35 Rodolfo later filed a manifestation and motion to adopt the said petition which was
granted. 36
In the instant consolidated petitions, Edgar and Rodolfo insist that the venue of the subject petition for
letters of administration was improperly laid because at the time of his death, Felicisimo was a
resident of Sta. Cruz, Laguna. They contend that pursuant to our rulings in Nuval v. Guray 37 and
Romualdez v. RTC, Br. 7, Tacloban City, 38"residence" is synonymous with "domicile" which denotes a
fixed permanent residence to which when absent, one intends to return. They claim that a person can
only have one domicile at any given time. Since Felicisimo never changed his domicile, the petition
for letters of administration should have been filed in Sta. Cruz, Laguna.
Petitioners also contend that respondent’s marriage to Felicisimo was void and bigamous because it
was performed during the subsistence of the latter’s marriage to Merry Lee. They argue that
paragraph 2, Article 26 cannot be retroactively applied because it would impair vested rights and ratify
the void bigamous marriage. As such, respondent cannot be considered the surviving wife of
Felicisimo; hence, she has no legal capacity to file the petition for letters of administration.
The issues for resolution: (1) whether venue was properly laid, and (2) whether respondent has legal
capacity to file the subject petition for letters of administration.
The petition lacks merit.
Under Section 1, 39 Rule 73 of the Rules of Court, the petition for letters of administration of the estate
of Felicisimo should be filed in the Regional Trial Court of the province "in which he resides at the
time of his death." In the case of Garcia Fule v. Court of Appeals, 40 we laid down the doctrinal rule for
67
determining the residence – as contradistinguished from domicile – of the decedent for purposes of
fixing the venue of the settlement of his estate:
[T]he term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence
or domicile." This term "resides," like the terms "residing" and "residence," is elastic and should be
interpreted in the light of the object or purpose of the statute or rule in which it is employed. In the
application of venue statutes and rules – Section 1, Rule 73 of the Revised Rules of Court is of such
nature – residence rather than domicile is the significant factor. Even where the statute uses the word
"domicile" still it is construed as meaning residence and not domicile in the technical sense. Some
cases make a distinction between the terms "residence" and "domicile" but as generally used in
statutes fixing venue, the terms are synonymous, and convey the same meaning as the term
"inhabitant." In other words, "resides" should be viewed or understood in its popular sense, meaning,
the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies
physical presence in a place and actual stay thereat. In this popular sense, the term means merely
residence, that is, personal residence, not legal residence or domicile. Residence simply requires
bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that
place and also an intention to make it one’s domicile. No particular length of time of residence is
required though; however, the residence must be more than temporary. 41 (Emphasis supplied)
It is incorrect for petitioners to argue that "residence," for purposes of fixing the venue of the
settlement of the estate of Felicisimo, is synonymous with "domicile." The rulings in Nuval and
Romualdez are inapplicable to the instant case because they involve election cases. Needless to say,
there is a distinction between "residence" for purposes of election laws and "residence" for purposes
of fixing the venue of actions. In election cases, "residence" and "domicile" are treated as
synonymous terms, that is, the fixed permanent residence to which when absent, one has the
intention of returning. 42 However, for purposes of fixing venue under the Rules of Court, the
"residence" of a person is his personal, actual or physical habitation, or actual residence or place of
abode, which may not necessarily be his legal residence or domicile provided he resides therein with
continuity and consistency. 43 Hence, it is possible that a person may have his residence in one place
and domicile in another.
In the instant case, while petitioners established that Felicisimo was domiciled in Sta. Cruz, Laguna,
respondent proved that he also maintained a residence in Alabang, Muntinlupa from 1982 up to the
time of his death. Respondent submitted in evidence the Deed of Absolute Sale 44 dated January 5,
1983 showing that the deceased purchased the aforesaid property. She also presented billing
statements 45 from the Philippine Heart Center and Chinese General Hospital for the period August to
December 1992 indicating the address of Felicisimo at "100 San Juanico, Ayala Alabang,
Muntinlupa." Respondent also presented proof of membership of the deceased in the Ayala Alabang
Village Association 46 and Ayala Country Club, Inc., 47 letter-envelopes 48 from 1988 to 1990 sent by
the deceased’s children to him at his Alabang address, and the deceased’s calling cards 49 stating
that his home/city address is at "100 San Juanico, Ayala Alabang Village, Muntinlupa" while his
office/provincial address is in "Provincial Capitol, Sta. Cruz, Laguna."
From the foregoing, we find that Felicisimo was a resident of Alabang, Muntinlupa for purposes of
fixing the venue of the settlement of his estate. Consequently, the subject petition for letters of
administration was validly filed in the Regional Trial Court 50 which has territorial jurisdiction over
Alabang, Muntinlupa. The subject petition was filed on December 17, 1993. At that time, Muntinlupa
was still a municipality and the branches of the Regional Trial Court of the National Capital Judicial
Region which had territorial jurisdiction over Muntinlupa were then seated in Makati City as per
Supreme Court Administrative Order No. 3. 51 Thus, the subject petition was validly filed before the
Regional Trial Court of Makati City.
Anent the issue of respondent Felicidad’s legal personality to file the petition for letters of
administration, we must first resolve the issue of whether a Filipino who is divorced by his alien
spouse abroad may validly remarry under the Civil Code, considering that Felicidad’s marriage to
Felicisimo was solemnized on June 20, 1974, or before the Family Code took effect on August 3,
1988. In resolving this issue, we need not retroactively apply the provisions of the Family Code,
particularly Art. 26, par. (2) considering that there is sufficient jurisprudential basis allowing us to rule
in the affirmative.
The case of Van Dorn v. Romillo, Jr. 52 involved a marriage between a foreigner and his Filipino wife,
which marriage was subsequently dissolved through a divorce obtained abroad by the latter. Claiming
that the divorce was not valid under Philippine law, the alien spouse alleged that his interest in the
properties from their conjugal partnership should be protected. The Court, however, recognized the
validity of the divorce and held that the alien spouse had no interest in the properties acquired by the
Filipino wife after the divorce. Thus:
In this case, the divorce in Nevada released private respondent from the marriage from the standards
of American law, under which divorce dissolves the marriage. As stated by the Federal Supreme
Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:
"The purpose and effect of a decree of divorce from the bond of matrimony by a competent
jurisdiction are to change the existing status or domestic relation of husband and wife, and to free
them both from the bond. The marriage tie, when thus severed as to one party, ceases to bind either.
A husband without a wife, or a wife without a husband, is unknown to the law. When the law provides,
in the nature of a penalty, that the guilty party shall not marry again, that party, as well as the other, is
still absolutely freed from the bond of the former marriage."
Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as petitioner’s husband entitled to exercise control
over conjugal assets. As he is bound by the Decision of his own country’s Court, which validly
exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own
representation before said Court from asserting his right over the alleged conjugal property. 53
As to the effect of the divorce on the Filipino wife, the Court ruled that she should no longer be
considered married to the alien spouse. Further, she should not be required to perform her marital
duties and obligations. It held:
To maintain, as private respondent does, that, under our laws, petitioner has to be
considered still marriedto private respondent and still subject to a wife's obligations under
Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be obliged to live
together with, observe respect and fidelity, and render support to private respondent. The latter
should not continue to be one of her heirs with possible rights to conjugal property. She should not
68
be discriminated against in her own country if the ends of justice are to be served.54 (Emphasis
added)
This principle was thereafter applied in Pilapil v. Ibay-Somera 55 where the Court recognized the
validity of a divorce obtained abroad. In the said case, it was held that the alien spouse is not a
proper party in filing the adultery suit against his Filipino wife. The Court stated that "the severance of
the marital bond had the effect of dissociating the former spouses from each other, hence the
actuations of one would not affect or cast obloquy on the other." 56
Likewise, in Quita v. Court of Appeals, 57 the Court stated that where a Filipino is divorced by his
naturalized foreign spouse, the ruling in Van Dorn applies. 58 Although decided on December 22,
1998, the divorce in the said case was obtained in 1954 when the Civil Code provisions were still in
effect.
The significance of the Van Dorn case to the development of limited recognition of divorce in the
Philippines cannot be denied. The ruling has long been interpreted as severing marital ties between
parties in a mixed marriage and capacitating the Filipino spouse to remarry as a necessary
consequence of upholding the validity of a divorce obtained abroad by the alien spouse. In his
treatise, Dr. Arturo M. Tolentino cited Van Dorn stating that "if the foreigner obtains a valid foreign
divorce, the Filipino spouse shall have capacity to remarry under Philippine law." 59In Garcia v.
Recio, 60 the Court likewise cited the aforementioned case in relation to Article 26. 61
In the recent case of Republic v. Orbecido III, 62 the historical background and legislative intent behind
paragraph 2, Article 26 of the Family Code were discussed, to wit:
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise
known as the "Family Code," which took effect on August 3, 1988. Article 26 thereof states:
All marriages solemnized outside the Philippines in accordance with the laws in force in the country
where they were solemnized, and valid there as such, shall also be valid in this country, except those
prohibited under Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was
likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph
was added to Article 26. As so amended, it now provides:
ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there as such, shall also be valid in this country,
except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall have capacity to remarry under Philippine law. (Emphasis supplied)
xxxx
Legislative Intent
Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of
Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is
to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v.
Romillo, Jr. The Van Dorn case involved a marriage between a Filipino citizen and a foreigner.
The Court held therein that a divorce decree validly obtained by the alien spouse is valid in the
Philippines, and consequently, the Filipino spouse is capacitated to remarry under Philippine
law. 63 (Emphasis added)
As such, the Van Dorn case is sufficient basis in resolving a situation where a divorce is validly
obtained abroad by the alien spouse. With the enactment of the Family Code and paragraph 2, Article
26 thereof, our lawmakers codified the law already established through judicial
precedent.1awphi1.net
Indeed, when the object of a marriage is defeated by rendering its continuance intolerable to one of
the parties and productive of no possible good to the community, relief in some way should be
obtainable. 64 Marriage, being a mutual and shared commitment between two parties, cannot possibly
be productive of any good to the society where one is considered released from the marital bond
while the other remains bound to it. Such is the state of affairs where the alien spouse obtains a valid
divorce abroad against the Filipino spouse, as in this case.
Petitioners cite Articles 15 65 and 17 66 of the Civil Code in stating that the divorce is void under
Philippine law insofar as Filipinos are concerned. However, in light of this Court’s rulings in the cases
discussed above, the Filipino spouse should not be discriminated against in his own country if the
ends of justice are to be served. 67 In Alonzo v. Intermediate Appellate Court, 68 the Court stated:
But as has also been aptly observed, we test a law by its results; and likewise, we may add, by its
purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge
should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should
never be interpreted in such a way as to cause injustice as this is never within the legislative intent.
An indispensable part of that intent, in fact, for we presume the good motives of the legislature, is
to render justice.
Thus, we interpret and apply the law not independently of but in consonance with justice. Law and
justice are inseparable, and we must keep them so. To be sure, there are some laws that, while
generally valid, may seem arbitrary when applied in a particular case because of its peculiar
circumstances. In such a situation, we are not bound, because only of our nature and functions, to
apply them just the same, in slavish obedience to their language. What we do instead is find a
balance between the word and the will, that justice may be done even as the law is obeyed.
69
As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded,
yielding like robots to the literal command without regard to its cause and consequence. "Courts are
apt to err by sticking too closely to the words of a law," so we are warned, by Justice Holmes again,
"where these words import a policy that goes beyond them."
xxxx
More than twenty centuries ago, Justinian defined justice "as the constant and perpetual wish to
render every one his due." That wish continues to motivate this Court when it assesses the facts and
the law in every case brought to it for decision. Justice is always an essential ingredient of its
decisions. Thus when the facts warrants, we interpret the law in a way that will render justice,
presuming that it was the intention of the lawmaker, to begin with, that the law be dispensed with
justice. 69
Applying the above doctrine in the instant case, the divorce decree allegedly obtained by Merry Lee
which absolutely allowed Felicisimo to remarry, would have vested Felicidad with the legal personality
to file the present petition as Felicisimo’s surviving spouse. However, the records show that there is
insufficient evidence to prove the validity of the divorce obtained by Merry Lee as well as the marriage
of respondent and Felicisimo under the laws of the U.S.A. In Garcia v. Recio, 70 the Court laid down
the specific guidelines for pleading and proving foreign law and divorce judgments. It held that
presentation solely of the divorce decree is insufficient and that proof of its authenticity and due
execution must be presented. Under Sections 24 and 25 of Rule 132, a writing or document may be
proven as a public or official record of a foreign country by either (1) an official publication or (2) a
copy thereof attested by the officer having legal custody of the document. If the record is not kept in
the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic
or consular officer in the Philippine foreign service stationed in the foreign country in which the record
is kept and (b) authenticated by the seal of his office. 71
With regard to respondent’s marriage to Felicisimo allegedly solemnized in California, U.S.A., she
submitted photocopies of the Marriage Certificate and the annotated text 72 of the Family Law Act of
California which purportedly show that their marriage was done in accordance with the said law. As
stated in Garcia, however, the Court cannot take judicial notice of foreign laws as they must be
alleged and proved. 73
Therefore, this case should be remanded to the trial court for further reception of evidence on the
divorce decree obtained by Merry Lee and the marriage of respondent and Felicisimo.
Even assuming that Felicisimo was not capacitated to marry respondent in 1974, nevertheless, we
find that the latter has the legal personality to file the subject petition for letters of administration, as
she may be considered the co-owner of Felicisimo as regards the properties that were acquired
through their joint efforts during their cohabitation.
Section 6, 74 Rule 78 of the Rules of Court states that letters of administration may be granted to the
surviving spouse of the decedent. However, Section 2, Rule 79 thereof also provides in part:
SEC. 2. Contents of petition for letters of administration. – A petition for letters of administration must
be filed by an interested person and must show, as far as known to the petitioner: x x x.
An "interested person" has been defined as one who would be benefited by the estate, such as an
heir, or one who has a claim against the estate, such as a creditor. The interest must be material and
direct, and not merely indirect or contingent. 75
In the instant case, respondent would qualify as an interested person who has a direct interest in the
estate of Felicisimo by virtue of their cohabitation, the existence of which was not denied by
petitioners. If she proves the validity of the divorce and Felicisimo’s capacity to remarry, but fails to
prove that her marriage with him was validly performed under the laws of the U.S.A., then she may be
considered as a co-owner under Article 144 76 of the Civil Code. This provision governs the property
relations between parties who live together as husband and wife without the benefit of marriage, or
their marriage is void from the beginning. It provides that the property acquired by either or both of
them through their work or industry or their wages and salaries shall be governed by the rules on co-
ownership. In a co-ownership, it is not necessary that the property be acquired through their joint
labor, efforts and industry. Any property acquired during the union is prima facie presumed to have
been obtained through their joint efforts. Hence, the portions belonging to the co-owners shall be
presumed equal, unless the contrary is proven. 77
Meanwhile, if respondent fails to prove the validity of both the divorce and the marriage, the
applicable provision would be Article 148 of the Family Code which has filled the hiatus in Article 144
of the Civil Code by expressly regulating the property relations of couples living together as husband
and wife but are incapacitated to marry. 78 In Saguid v. Court of Appeals, 79 we held that even if the
cohabitation or the acquisition of property occurred before the Family Code took effect, Article 148
governs. 80 The Court described the property regime under this provision as follows:
The regime of limited co-ownership of property governing the union of parties who are not legally
capacitated to marry each other, but who nonetheless live together as husband and wife, applies to
properties acquired during said cohabitation in proportion to their respective contributions. Co-
ownership will only be up to the extent of the proven actual contribution of money, property or
industry. Absent proof of the extent thereof, their contributions and corresponding shares shall be
presumed to be equal.
xxxx
In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which involved the issue of co-ownership
of properties acquired by the parties to a bigamous marriage and an adulterous relationship,
respectively, we ruled that proof of actual contribution in the acquisition of the property is essential. x
xx
As in other civil cases, the burden of proof rests upon the party who, as determined by the pleadings
or the nature of the case, asserts an affirmative issue. Contentions must be proved by competent
evidence and reliance must be had on the strength of the party’s own evidence and not upon the
weakness of the opponent’s defense. x x x 81
70
In view of the foregoing, we find that respondent’s legal capacity to file the subject petition for letters
of administration may arise from her status as the surviving wife of Felicisimo or as his co-owner
under Article 144 of the Civil Code or Article 148 of the Family Code.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals reinstating and affirming
the February 28, 1994 Order of the Regional Trial Court which denied petitioners’ motion to dismiss
and its October 24, 1994 Order which dismissed petitioners’ motion for reconsideration is AFFIRMED.
Let this case be REMANDED to the trial court for further proceedings.

SO ORDERED.

71

19. G.R. No. 171914 July 23, 2014
SOLEDAD L. LAVADIA, Petitioner,
vs.
HEIRS OF JUAN LUCES LUNA, represented by GREGORIO Z. LUNA and EUGENIA
ZABALLERO-LUNA,Respondents.
DECISION
BERSAMIN, J.:
Divorce between Filipinos is void and ineffectual under the nationality rule adopted by Philippine law.
Hence, any settlement of property between the parties of the first marriage involving Filipinos
submitted as an incident of a divorce obtained in a foreign country lacks competent judicial approval,
and cannot be enforceable against the assets of the husband who contracts a subsequent marriage.
The Case
The petitioner, the second wife of the late Atty. Juan Luces Luna, appeals the adverse decision
promulgated on November 11, 2005,1 whereby the Court of Appeals (CA) affirmed with modification
the decision rendered on August 27, 2001 by the Regional Trial Court (RTC), Branch 138, in Makati
City.2 The CA thereby denied her right in the 25/100 pro indiviso share of the husband in a
condominium unit, and in the law books of the husband acquired during the second marriage.
Antecedents
The antecedent facts were summarized by the CA as follows:
ATTY. LUNA, a practicing lawyer, was at first a name partner in the prestigious law firm Sycip,
Salazar, Luna, Manalo, Hernandez & Feliciano Law Offices at that time when he was living with his
first wife, herein intervenor-appellant Eugenia Zaballero-Luna (EUGENIA), whom he initially married
ina civil ceremony conducted by the Justice of the Peace of Parañaque, Rizal on September 10, 1947
and later solemnized in a church ceremony at the Pro-Cathedral in San Miguel, Bulacan on
September 12, 1948. In ATTY. LUNA’s marriage to EUGENIA, they begot seven (7) children, namely:
Regina Maria L. Nadal, Juan Luis Luna, Araceli Victoria L. Arellano, Ana Maria L. Tabunda, Gregorio
Macario Luna, Carolina Linda L. Tapia, and Cesar Antonio Luna. After almost two (2) decades of
marriage, ATTY. LUNA and EUGENIA eventually agreed to live apart from each other in February
1966 and agreed to separation of property, to which end, they entered into a written agreement
entitled "AGREEMENT FOR SEPARATION AND PROPERTY SETTLEMENT" dated November 12,
1975, whereby they agreed to live separately and to dissolve and liquidate their conjugal partnership
of property.
On January 12, 1976, ATTY. LUNA obtained a divorce decree of his marriage with EUGENIA from the
Civil and Commercial Chamber of the First Circumscription of the Court of First Instance of Sto.
Domingo, Dominican Republic. Also in Sto.Domingo, Dominican Republic, on the same date, ATTY.
LUNA contracted another marriage, this time with SOLEDAD. Thereafter, ATTY. LUNA and SOLEDAD
returned to the Philippines and lived together as husband and wife until 1987.
Sometime in 1977, ATTY. LUNA organized a new law firm named: Luna, Puruganan, Sison and
Ongkiko (LUPSICON) where ATTY. LUNA was the managing partner.
On February 14, 1978, LUPSICON through ATTY. LUNA purchased from Tandang Sora Development
Corporation the 6th Floor of Kalaw-Ledesma Condominium Project(condominium unit) at Gamboa
St., Makati City, consisting of 517.52 square meters, for ₱1,449,056.00, to be paid on installment
basis for 36months starting on April 15, 1978. Said condominium unit was to be usedas law office of
LUPSICON. After full payment, the Deed of Absolute Sale over the condominium unit was executed
on July 15, 1983, and CCT No. 4779 was issued on August 10, 1983, which was registered bearing
the following names:
"JUAN LUCES LUNA, married to Soledad L. Luna (46/100); MARIO E. ONGKIKO, married to Sonia
P.G. Ongkiko (25/100); GREGORIO R. PURUGANAN, married to Paz A. Puruganan (17/100); and
TERESITA CRUZ SISON, married to Antonio J.M. Sison (12/100) x x x" Subsequently, 8/100 share of
ATTY. LUNA and 17/100 share of Atty. Gregorio R. Puruganan in the condominium unit was sold to
Atty. Mario E. Ongkiko, for which a new CCT No. 21761 was issued on February 7, 1992 in the
following names:
"JUAN LUCES LUNA, married to Soledad L. Luna (38/100); MARIO E. ONGKIKO, married to Sonia
P.G. Ongkiko (50/100); TERESITA CRUZ SISON, married to Antonio J.M. Sison (12/100) x x x"
Sometime in 1992, LUPSICON was dissolved and the condominium unit was partitioned by the
partners but the same was still registered in common under CCT No. 21716. The parties stipulated
that the interest of ATTY. LUNA over the condominium unit would be 25/100 share. ATTY. LUNA
thereafter established and headed another law firm with Atty. Renato G. Dela Cruzand used a portion
of the office condominium unit as their office. The said law firm lasted until the death of ATTY. JUAN
on July 12, 1997.
After the death of ATTY. JUAN, his share in the condominium unit including the lawbooks, office
furniture and equipment found therein were taken over by Gregorio Z. Luna, ATTY. LUNA’s son of the
first marriage. Gregorio Z. Luna thenleased out the 25/100 portion of the condominium unit belonging
to his father to Atty. Renato G. De la Cruz who established his own law firm named Renato G. De la
Cruz & Associates.
The 25/100 pro-indiviso share of ATTY. Luna in the condominium unit as well as the law books, office
furniture and equipment became the subject of the complaint filed by SOLEDAD against the heirs of
ATTY. JUAN with the RTC of Makati City, Branch 138, on September 10, 1999, docketed as Civil
Case No. 99-1644. The complaint alleged that the subject properties were acquired during the
existence of the marriage between ATTY. LUNA and SOLEDAD through their joint efforts that since
they had no children, SOLEDAD became co-owner of the said properties upon the death of ATTY.
72
LUNA to the extent of ¾ pro-indiviso share consisting of her ½ share in the said properties plus her ½
share in the net estate of ATTY. LUNA which was bequeathed to her in the latter’s last will and
testament; and thatthe heirs of ATTY. LUNA through Gregorio Z. Luna excluded SOLEDAD from her
share in the subject properties. The complaint prayed that SOLEDAD be declared the owner of the ¾
portion of the subject properties;that the same be partitioned; that an accounting of the rentals on the
condominium unit pertaining to the share of SOLEDAD be conducted; that a receiver be appointed to
preserve ad administer the subject properties;and that the heirs of ATTY. LUNA be ordered to pay
attorney’s feesand costs of the suit to SOLEDAD.3
Ruling of the RTC
On August 27, 2001, the RTC rendered its decision after trial upon the aforementioned
facts,4 disposing thusly:
WHEREFORE, judgment is rendered as follows:
(a) The 24/100 pro-indiviso share in the condominium unit located at the SIXTH FLOOR of
the KALAW LEDESMA CONDOMINIUM PROJECT covered by Condominium Certificate of
Title No. 21761 consisting of FIVE HUNDRED SEVENTEEN (517/100) SQUARE METERS
is adjudged to have been acquired by Juan Lucas Luna through his sole industry;
(b) Plaintiff has no right as owner or under any other concept over the condominium unit,
hence the entry in Condominium Certificate of Title No. 21761 of the Registry of Deeds of
Makati with respect to the civil status of Juan Luces Luna should be changed from "JUAN
LUCES LUNA married to Soledad L. Luna" to "JUAN LUCES LUNA married to Eugenia
Zaballero Luna";
(c) Plaintiff is declared to be the owner of the books Corpus Juris, Fletcher on Corporation,
American Jurisprudence and Federal Supreme Court Reports found in the condominium unit
and defendants are ordered to deliver them to the plaintiff as soon as appropriate
arrangements have been madefor transport and storage.
No pronouncement as to costs.
In contrast, the respondents attributedthe following errors to the trial court, to wit:
SO ORDERED.5
Decision of the CA
Both parties appealed to the CA.6
On her part, the petitioner assigned the following errors to the RTC, namely:
I. THE LOWER COURT ERRED IN RULING THAT THE CONDOMINIUM UNIT WAS
ACQUIRED THRU THE SOLE INDUSTRY OF ATTY. JUAN LUCES LUNA;
II. THE LOWER COURT ERRED IN RULING THAT PLAINTIFFAPPELLANT DID NOT
CONTRIBUTE MONEY FOR THE ACQUISITION OF THE CONDOMINIUM UNIT;
III. THE LOWER COURT ERRED IN GIVING CREDENCE TO PORTIONS OF THE
TESTIMONY OF GREGORIO LUNA, WHO HAS NO ACTUAL KNOWLEDGE OF THE
ACQUISITION OF THE UNIT, BUT IGNORED OTHER PORTIONS OF HIS TESTIMONY
FAVORABLE TO THE PLAINTIFF-APPELLANT;
IV. THE LOWER COURT ERRED IN NOT GIVING SIGNIFICANCE TO THE FACT THAT
THE CONJUGAL PARTNERSHIP BETWEEN LUNA AND INTERVENOR-APPELLANT WAS
ALREADY DISSOLVED AND LIQUIDATED PRIOR TO THE UNION OF PLAINTIFF-
APPELLANT AND LUNA;
V. THE LOWER COURT ERRED IN GIVING UNDUE SIGNIFICANCE TO THE ABSENCE
OF THE DISPOSITION OF THE CONDOMINIUM UNIT IN THE HOLOGRAPHIC WILL OF
THE PLAINTIFF-APPELLANT;
VI. THE LOWER COURT ERRED IN GIVING UNDUE SIGNIFICANCE TO THE FACTTHAT
THE NAME OF PLAINTIFF-APPELLANT DID NOT APPEAR IN THE DEED OF ABSOLUTE
SALE EXECUTED BY TANDANG SORA DEVELOPMENT CORPORATION OVER THE
CONDOMINIUM UNIT;
VII. THE LOWER COURT ERRED IN RULING THAT NEITHER ARTICLE 148 OF THE
FAMILYCODE NOR ARTICLE 144 OF THE CIVIL CODE OF THE PHILIPPINES ARE
APPLICABLE;
VIII. THE LOWER COURT ERRED IN NOT RULING THAT THE CAUSE OF ACTION OF
THE INTERVENOR-APPELLANT HAS BEEN BARRED BY PESCRIPTION AND LACHES;
and
IX. THE LOWER COURT ERRED IN NOT EXPUNGING/DISMISSING THE
INTERVENTION FOR FAILURE OF INTERVENOR-APPELLANT TO PAY FILING FEE. 7
I. THE LOWER COURT ERRED IN HOLDING THAT CERTAIN FOREIGN LAW BOOKS IN
THE LAW OFFICE OF ATTY. LUNA WERE BOUGHT WITH THE USE OF PLAINTIFF’S
MONEY;
II. THE LOWER COURT ERRED IN HOLDING THAT PLAINTIFF PROVED BY
PREPONDERANCE OF EVIDENCE (HER CLAIM OVER) THE SPECIFIED FOREIGN LAW
BOOKS FOUND IN ATTY. LUNA’S LAW OFFICE; and
73
 III. THE LOWER COURT ERRED IN NOT HOLDING THAT, ASSUMING PLAINTIFF PAID
FOR THE SAID FOREIGN LAW BOOKS, THE RIGHT TO RECOVER THEM HAD
PRESCRIBED AND BARRED BY LACHES AND ESTOPPEL.8
On November 11, 2005, the CA promulgated its assailed modified decision,9 holding and ruling:
EUGENIA, the first wife, was the legitimate wife of ATTY. LUNA until the latter’s death on July 12,
1997. The absolute divorce decree obtained by ATTY. LUNA inthe Dominican Republic did not
terminate his prior marriage with EUGENIA because foreign divorce between Filipino citizens is not
recognized in our jurisdiction. x x x10
xxxx
WHEREFORE, premises considered, the assailed August 27, 2001 Decision of the RTC of
MakatiCity, Branch 138, is hereby MODIFIEDas follows:
(a) The 25/100 pro-indiviso share in the condominium unit at the SIXTH FLOOR of the
KALAW LEDESMA CONDOMINIUM PROJECT covered by Condominium Certificate of Title
No. 21761 consisting of FIVE HUNDRED SEVENTEEN (517/100) (sic) SQUARE METERS
is hereby adjudged to defendants-appellants, the heirs of Juan Luces Luna and Eugenia
Zaballero-Luna (first marriage), having been acquired from the sole funds and sole industry
of Juan Luces Luna while marriage of Juan Luces Luna and Eugenia Zaballero-Luna (first
marriage) was still subsisting and valid;
(b) Plaintiff-appellant Soledad Lavadia has no right as owner or under any other concept
over the condominium unit, hence the entry in Condominium Certificate of Title No. 21761 of
the Registry of Deeds ofMakati with respect to the civil status of Juan Luces Luna should be
changed from "JUAN LUCES LUNA married to Soledad L. Luna" to "JUAN LUCES LUNA
married to Eugenia Zaballero Luna";
(c) Defendants-appellants, the heirs of Juan Luces Luna and Eugenia Zaballero-Luna(first
marriage) are hereby declared to be the owner of the books Corpus Juris, Fletcher on
Corporation, American Jurisprudence and Federal Supreme Court Reports found in the
condominium unit.
No pronouncement as to costs.
SO ORDERED.11
On March 13, 2006,12 the CA denied the petitioner’s motion for reconsideration.13
Issues
In this appeal, the petitioner avers in her petition for review on certiorarithat:
A. The Honorable Court of Appeals erred in ruling that the Agreement for Separation and
Property Settlement executed by Luna and Respondent Eugenia was unenforceable; hence,
their conjugal partnership was not dissolved and liquidated;
B. The Honorable Court of Appeals erred in not recognizing the Dominican Republic court’s
approval of the Agreement;
C. The Honorable Court of Appeals erred in ruling that Petitioner failed to adduce sufficient
proof of actual contribution to the acquisition of purchase of the subjectcondominium unit;
and
D. The Honorable Court of Appeals erred in ruling that Petitioner was not entitled to the
subject law books.14
The decisive question to be resolved is who among the contending parties should be entitled to the
25/100 pro indivisoshare in the condominium unit; and to the law books (i.e., Corpus Juris, Fletcher
on Corporation, American Jurisprudence and Federal Supreme Court Reports).
The resolution of the decisive question requires the Court to ascertain the law that should determine,
firstly, whether the divorce between Atty. Luna and Eugenia Zaballero-Luna (Eugenia) had validly
dissolved the first marriage; and, secondly, whether the second marriage entered into by the late Atty.
Luna and the petitioner entitled the latter to any rights in property. Ruling of the Court
We affirm the modified decision of the CA.
1. Atty. Luna’s first marriage with Eugenia
subsisted up to the time of his death
The first marriage between Atty. Luna and Eugenia, both Filipinos, was solemnized in the Philippines
on September 10, 1947. The law in force at the time of the solemnization was the Spanish Civil Code,
which adopted the nationality rule. The Civil Codecontinued to follow the nationality rule, to the effect
that Philippine laws relating to family rights and duties, or to the status, condition and legal capacity of
persons were binding upon citizens of the Philippines, although living abroad.15 Pursuant to the
nationality rule, Philippine laws governed thiscase by virtue of bothAtty. Luna and Eugenio having
remained Filipinos until the death of Atty. Luna on July 12, 1997 terminated their marriage.
From the time of the celebration ofthe first marriage on September 10, 1947 until the present,
absolute divorce between Filipino spouses has not been recognized in the Philippines. The non-
recognition of absolute divorce between Filipinos has remained even under the Family Code,16 even if
either or both of the spouses are residing abroad.17 Indeed, the only two types of defective marital
unions under our laws have beenthe void and the voidable marriages. As such, the remedies against
such defective marriages have been limited to the declaration of nullity ofthe marriage and the
annulment of the marriage.
74
It is true that on January 12, 1976, the Court of First Instance (CFI) of Sto. Domingo in the Dominican
Republic issued the Divorce Decree dissolving the first marriage of Atty. Luna and
Eugenia.18 Conformably with the nationality rule, however, the divorce, even if voluntarily obtained
abroad, did not dissolve the marriage between Atty. Luna and Eugenia, which subsisted up to the
time of his death on July 12, 1997. This finding conforms to the Constitution, which characterizes
marriage as an inviolable social institution,19 and regards it as a special contract of permanent union
between a man and a woman for the establishment of a conjugal and family life.20 The non-
recognition of absolute divorce in the Philippines is a manifestation of the respect for the sanctity of
the marital union especially among Filipino citizens. It affirms that the extinguishment of a valid
marriage must be grounded only upon the death of either spouse, or upon a ground expressly
provided bylaw. For as long as this public policy on marriage between Filipinos exists, no divorce
decree dissolving the marriage between them can ever be given legal or judicial recognition and
enforcement in this jurisdiction.
2. The Agreement for Separation and Property Settlement
was void for lack of court approval
The petitioner insists that the Agreement for Separation and Property Settlement (Agreement) that the
late Atty. Luna and Eugenia had entered into and executed in connection with the divorce
proceedings before the CFI of Sto. Domingo in the Dominican Republic to dissolve and liquidate their
conjugal partnership was enforceable against Eugenia. Hence, the CA committed reversible error in
decreeing otherwise.
The insistence of the petitioner was unwarranted.
Considering that Atty. Luna and Eugenia had not entered into any marriage settlement prior to their
marriage on September 10, 1947, the system of relative community or conjugal partnership of gains
governed their property relations. This is because the Spanish Civil Code, the law then in force at the
time of their marriage, did not specify the property regime of the spouses in the event that they had
not entered into any marriage settlement before or at the time of the marriage. Article 119 of the Civil
Codeclearly so provides, to wit:
Article 119. The future spouses may in the marriage settlements agree upon absolute or relative
community of property, or upon complete separation of property, or upon any other regime. In the
absence of marriage settlements, or when the same are void, the system of relative community or
conjugal partnership of gains as established in this Code, shall govern the property relations between
husband and wife.
Article 142 of the Civil Codehas defined a conjugal partnership of gains thusly:
Article 142. By means of the conjugal partnership of gains the husband and wife place in a common
fund the fruits of their separate property and the income from their work or industry, and divide
equally, upon the dissolution of the marriage or of the partnership, the net gains or benefits obtained
indiscriminately by either spouse during the marriage.
The conjugal partnership of gains subsists until terminated for any of various causes of termination
enumerated in Article 175 of the Civil Code, viz:
Article 175. The conjugal partnership of gains terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled;
(4) In case of judicial separation of property under Article 191.
The mere execution of the Agreement by Atty. Luna and Eugenia did not per sedissolve and liquidate
their conjugal partnership of gains. The approval of the Agreement by a competent court was still
required under Article 190 and Article 191 of the Civil Code, as follows:
Article 190. In the absence of an express declaration in the marriage settlements, the separation of
property between spouses during the marriage shall not take place save in virtue of a judicial order.
(1432a)
Article 191. The husband or the wife may ask for the separation of property, and it shall be decreed
when the spouse of the petitioner has been sentenced to a penalty which carries with it civil
interdiction, or has been declared absent, or when legal separation has been granted.
xxxx
The husband and the wife may agree upon the dissolution of the conjugal partnership during the
marriage, subject to judicial approval. All the creditors of the husband and of the wife, as well as of
the conjugal partnership shall be notified of any petition for judicialapproval or the voluntary
dissolution of the conjugal partnership, so that any such creditors may appear atthe hearing to
safeguard his interests. Upon approval of the petition for dissolution of the conjugal partnership, the
court shall take such measures as may protect the creditors and other third persons.
After dissolution of the conjugal partnership, the provisions of articles 214 and 215 shall apply. The
provisions of this Code concerning the effect of partition stated in articles 498 to 501 shall be
applicable. (1433a)
But was not the approval of the Agreement by the CFI of Sto. Domingo in the Dominican Republic
sufficient in dissolving and liquidating the conjugal partnership of gains between the late Atty. Luna
and Eugenia?
The query is answered in the negative. There is no question that the approval took place only as an
incident ofthe action for divorce instituted by Atty. Luna and Eugenia, for, indeed, the justifications for
75
their execution of the Agreement were identical to the grounds raised in the action for divorce.21 With
the divorce not being itself valid and enforceable under Philippine law for being contrary to Philippine
public policy and public law, the approval of the Agreement was not also legally valid and enforceable
under Philippine law. Consequently, the conjugal partnership of gains of Atty. Luna and Eugenia
subsisted in the lifetime of their marriage.
3. Atty. Luna’s marriage with Soledad, being bigamous,
was void; properties acquired during their marriage
were governed by the rules on co-ownership
What law governed the property relations of the second marriage between Atty. Luna and Soledad?
The CA expressly declared that Atty. Luna’s subsequent marriage to Soledad on January 12, 1976
was void for being bigamous,22 on the ground that the marriage between Atty. Luna and Eugenia had
not been dissolved by the Divorce Decree rendered by the CFI of Sto. Domingo in the Dominican
Republic but had subsisted until the death of Atty. Luna on July 12, 1997.
The Court concurs with the CA.
In the Philippines, marriages that are bigamous, polygamous, or incestuous are void. Article 71 of the
Civil Codeclearly states:
Article 71. All marriages performed outside the Philippines in accordance with the laws in force in the
country where they were performed, and valid there as such, shall also be valid in this country, except
bigamous, polygamous, or incestuous marriages as determined by Philippine law.
Bigamy is an illegal marriage committed by contracting a second or subsequent marriage before the
first marriage has been legally dissolved, or before the absent spouse has been declared
presumptively dead by means of a judgment rendered in the proper proceedings.23 A bigamous
marriage is considered void ab initio.24
Due to the second marriage between Atty. Luna and the petitioner being void ab initioby virtue of its
being bigamous, the properties acquired during the bigamous marriage were governed by the rules
on co-ownership, conformably with Article 144 of the Civil Code, viz:
Article 144. When a man and a woman live together as husband and wife, but they are not married,
ortheir marriage is void from the beginning, the property acquired by eitheror both of them through
their work or industry or their wages and salaries shall be governed by the rules on co-ownership.(n)
In such a situation, whoever alleges co-ownership carried the burden of proof to confirm such
fact.1âwphi1 To establish co-ownership, therefore, it became imperative for the petitioner to offer
proof of her actual contributions in the acquisition of property. Her mere allegation of co-ownership,
without sufficient and competent evidence, would warrant no relief in her favor. As the Court
explained in Saguid v. Court of Appeals:25
In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which involved the issue of co-ownership
ofproperties acquired by the parties to a bigamous marriage and an adulterous relationship,
respectively, we ruled that proof of actual contribution in the acquisition of the property is essential.
The claim of co-ownership of the petitioners therein who were parties to the bigamous and
adulterousunion is without basis because they failed to substantiate their allegation that they
contributed money in the purchase of the disputed properties. Also in Adriano v. Court of Appeals, we
ruled that the fact that the controverted property was titled in the name of the parties to an adulterous
relationship is not sufficient proof of coownership absent evidence of actual contribution in the
acquisition of the property.
As in other civil cases, the burden of proof rests upon the party who, as determined by the pleadings
or the nature of the case, asserts an affirmative issue. Contentions must be proved by competent
evidence and reliance must be had on the strength of the party’s own evidence and not upon the
weakness of the opponent’s defense. This applies with more vigor where, as in the instant case, the
plaintiff was allowed to present evidence ex parte.1âwphi1 The plaintiff is not automatically entitled to
the relief prayed for. The law gives the defendantsome measure of protection as the plaintiff must still
prove the allegations in the complaint. Favorable relief can be granted only after the court isconvinced
that the facts proven by the plaintiff warrant such relief. Indeed, the party alleging a fact has the
burden of proving it and a mereallegation is not evidence.26
The petitioner asserts herein that she sufficiently proved her actual contributions in the purchase of
the condominium unit in the aggregate amount of at least ₱306,572.00, consisting in direct
contributions of ₱159,072.00, and in repaying the loans Atty. Luna had obtained from Premex
Financing and Banco Filipino totaling ₱146,825.30;27 and that such aggregate contributions of
₱306,572.00 corresponded to almost the entire share of Atty. Luna in the purchase of the
condominium unit amounting to ₱362,264.00 of the unit’s purchase price of ₱1,449,056.00.28 The
petitioner further asserts that the lawbooks were paid for solely out of her personal funds, proof of
which Atty. Luna had even sent her a "thank you" note;29 that she had the financial capacity to make
the contributions and purchases; and that Atty. Luna could not acquire the properties on his own due
to the meagerness of the income derived from his law practice.
Did the petitioner discharge her burden of proof on the co-ownership?
In resolving the question, the CA entirely debunked the petitioner’s assertions on her actual
contributions through the following findings and conclusions, namely:
SOLEDAD was not able to prove by preponderance of evidence that her own independent funds
were used to buy the law office condominium and the law books subject matter in contentionin this
case – proof that was required for Article 144 of the New Civil Code and Article 148 of the Family
Code to apply – as to cases where properties were acquired by a man and a woman living together
as husband and wife but not married, or under a marriage which was void ab initio. Under Article 144
of the New Civil Code, the rules on co-ownership would govern. But this was not readily applicable to
many situations and thus it created a void at first because it applied only if the parties were not in any
way incapacitated or were without impediment to marry each other (for it would be absurd to create a
co-ownership where there still exists a prior conjugal partnership or absolute community between the
man and his lawful wife). This void was filled upon adoption of the Family Code. Article 148 provided
76
that: only the property acquired by both of the parties through their actual joint contribution of money,
property or industry shall be owned in common and in proportion to their respective contributions.
Such contributions and corresponding shares were prima faciepresumed to be equal. However, for
this presumption to arise, proof of actual contribution was required. The same rule and presumption
was to apply to joint deposits of money and evidence of credit. If one of the parties was validly
married to another, his or her share in the co-ownership accrued to the absolute community or
conjugal partnership existing in such valid marriage. If the party who acted in bad faith was not validly
married to another, his or her share shall be forfeited in the manner provided in the last paragraph of
the Article 147. The rules on forfeiture applied even if both parties were in bad faith. Co-ownership
was the exception while conjugal partnership of gains was the strict rule whereby marriage was an
inviolable social institution and divorce decrees are not recognized in the Philippines, as was held by
the Supreme Court in the case of Tenchavez vs. Escaño, G.R. No. L-19671, November 29, 1965, 15
SCRA 355, thus:
xxxx
As to the 25/100pro-indivisoshare of ATTY. LUNA in the condominium unit, SOLEDAD failed to prove
that she made an actual contribution to purchase the said property. She failed to establish that the
four (4) checks that she presented were indeed used for the acquisition of the share of ATTY. LUNA in
the condominium unit. This was aptly explained in the Decision of the trial court, viz.:
does not confer title but merely confirms one already existing. The phrase "married to" preceding
"Soledad L. Luna" is merely descriptive of the civil status of ATTY. LUNA.
SOLEDAD, the second wife, was not even a lawyer. So it is but logical that SOLEDAD had no
participation in the law firm or in the purchase of books for the law firm. SOLEDAD failed to prove that
she had anything to contribute and that she actually purchased or paid for the law office amortization
and for the law books. It is more logical to presume that it was ATTY. LUNA who bought the law office
space and the law books from his earnings from his practice of law rather than embarrassingly beg or
ask from SOLEDAD money for use of the law firm that he headed.30
The Court upholds the foregoing findings and conclusions by the CA both because they were
substantiated by the records and because we have not been shown any reason to revisit and undo
them. Indeed, the petitioner, as the party claiming the co-ownership, did not discharge her burden of
proof. Her mere allegations on her contributions, not being evidence,31 did not serve the purpose. In
contrast, given the subsistence of the first marriage between Atty. Luna and Eugenia, the presumption
that Atty. Luna acquired the properties out of his own personal funds and effort remained. It should
then be justly concluded that the properties in litislegally pertained to their conjugal partnership of
gains as of the time of his death. Consequently, the sole ownership of the 25/100 pro indivisoshare of
Atty. Luna in the condominium unit, and of the lawbooks pertained to the respondents as the lawful
heirs of Atty. Luna.

"x x x The first check, Exhibit "M" for ₱55,000.00 payable to Atty. Teresita Cruz Sison was issued on WHEREFORE, the Court AFFIRMS the decision promulgated on November 11, 2005; and ORDERS
January 27, 1977, which was thirteen (13) months before the Memorandum of Agreement, Exhibit "7" the petitioner to pay the costs of suit.
was signed. Another check issued on April 29, 1978 in the amount of ₱97,588.89, Exhibit "P" was
payable to Banco Filipino. According to the plaintiff, thiswas in payment of the loan of Atty. Luna. The SO ORDERED.
third check which was for ₱49,236.00 payable to PREMEX was dated May 19, 1979, also for
payment of the loan of Atty. Luna. The fourth check, Exhibit "M", for ₱4,072.00 was dated December
17, 1980. None of the foregoing prove that the amounts delivered by plaintiff to the payees were for LUCAS P. BERSAMIN
the acquisition of the subject condominium unit. The connection was simply not established. x x x" Associate Justice

SOLEDAD’s claim that she made a cash contribution of ₱100,000.00 is unsubstantiated. Clearly,
there is no basis for SOLEDAD’s claim of co-ownership over the 25/100 portion of the condominium
unit and the trial court correctly found that the same was acquired through the sole industry of ATTY.
LUNA, thus:

"The Deed of Absolute Sale, Exhibit "9", covering the condominium unit was in the name of Atty.
Luna, together with his partners in the law firm. The name of the plaintiff does not appear as vendee
or as the spouse of Atty. Luna. The same was acquired for the use of the Law firm of Atty. Luna. The
loans from Allied Banking Corporation and Far East Bank and Trust Company were loans of Atty.
Luna and his partners and plaintiff does not have evidence to show that she paid for them fully or
partially. x x x"

The fact that CCT No. 4779 and subsequently, CCT No. 21761 were in the name of "JUAN LUCES
LUNA, married to Soledad L. Luna" was no proof that SOLEDAD was a co-owner of the condominium
unit. Acquisition of title and registration thereof are two different acts. It is well settled that registration

77
 ARTICLE 16 - LAW GOVERNING REAL AND PERSONAL PROPERTY representing the title to the condominium unit had no existing encumbrance, except for anannotation
under Entry No. 73321/C-10186 which provided that any conveyance or encumbrance of CCT No.
18186 shall be subject to approval by the Philippine Retirement Authority (PRA). Although CCT No.
20. G.R. No. 205487 November 12, 2014
18186 contained Entry No. 66432/C-10186 dated February 2, 1999 representing a mortgage in favor
of Orion for a ₱1,000,000.00 loan, that annotation was subsequently cancelled on June 16, 2000 by
ORION SAVINGS BANK, Petitioner, Entry No. 73232/T. No. 10186. Despite the cancellation of the mortgage to Orion, the titles to the
vs. properties remained in possession of Perez.
SHIGEKANE SUZUKI, Respondent.
To protect his interests, Suzuki thenexecuted an Affidavit of Adverse Claim12 dated September 8,
DECISION 2003, withthe Registry of Deeds of Mandaluyong City, annotated as Entry No. 3292/C-No. 18186 in
CCT No. 18186. Suzuki then demanded the delivery of the titles.13 Orion, (through Perez), however,
BRION, J.: refused to surrender the titles, and cited the need to consult Orion’s legal counsel as its reason.

Before us is the Petition for Review on Certiorari1 filed by petitioner Orion Savings Bank (Orion) under On October 14, 2003, Suzuki received a letter from Orion’s counsel dated October 9, 2003, stating
Rule 45 of the Rules of Court, assailing the decision2 dated August 23, 2012 and the resolution3 dated that Kang obtained another loan in the amount of ₱1,800,000.00. When Kang failed to pay, he
January 25, 2013 of the Court of Appeals (CA) in CA-G.R. CV No. 94104. executed a Dacion en Pagodated February 2, 2003, in favorof Orion covering Unit No. 536. Orion,
however, did not register the Dacion en Pago, until October 15, 2003.
The Factual Antecedents
On October 28, 2003, Suzuki executed an Affidavit of Adverse Claim over Parking Slot No. 42
(covered by CCT No. 9118) and this was annotated as Entry No. 4712/C-No. 9118 in the parking lot’s
In the first week of August 2003, respondent Shigekane Suzuki (Suzuki), a Japanese national, met
title.
with Ms. Helen Soneja (Soneja) to inquire about a condominium unit and a parking slot at Cityland
Pioneer, Mandaluyong City, allegedly owned by Yung Sam Kang (Kang), a Korean national and a
Special Resident Retiree's Visa (SRRV) holder. On January 27, 2004, Suzuki filed a complaint for specific performance and damages against Kang
and Orion. At the pre-trial, the parties made the following admissions and stipulations:
At the meeting, Soneja informed Suzuki that Unit No. 536 [covered by Condominium Certificate of
Title (CCT) No. 18186]4 and Parking Slot No. 42 [covered by CCT No. 9118]5 were for sale for 1. That as of August 26, 2003, Kang was the registered owner of Unit No. 536 and Parking
₱3,000,000.00. Soneja likewise assured Suzuki that the titles to the unit and the parking slot were Slot No. 42;
clean. After a brief negotiation, the parties agreed to reduce the price to ₱2,800,000.00. On August 5,
2003, Suzuki issued Kang a Bank of the Philippine Island (BPI) Check No. 833496 for One Hundred 2. That the mortgage in favor ofOrion supposedly executed by Kang, with Entry No.
Thousand Pesos (₱100,000.00) as reservation fee.7 On August 21, 2003, Suzuki issued Kang 66432/C-10186 dated February 2, 1999, was subsequently cancelled by Entry No. 73232/T
another check, BPI Check No. 83350,8 this time for ₱2,700,000.00 representing the remaining No. 10186 dated June 16, 2000;
balance of the purchase price. Suzuki and Kang then executed a Deed of Absolute Sale dated August
26, 20039covering Unit No. 536 and Parking Slot No. 42. Soon after, Suzuki took possession of the
3. That the alleged Dacion en Pagowas never annotated in CCT Nos. 18186 and 9118;
condominium unit and parking lot, and commenced the renovation of the interior of the condominium
unit.
4. That Orion only paid the appropriate capital gains tax and the documentary stamp tax for
the alleged Dacion en Pago on October 15, 2003;
Kang thereafter made several representations with Suzuki to deliver the titles to the properties, which
were then allegedly in possession of Alexander Perez (Perez, Orion’s Loans Officer) for safekeeping.
Despite several verbal demands, Kang failed to deliver the documents. Suzuki later on learned that 5. That Parking Slot No. 42, covered by CCT No. 9118, was never mortgaged to Orion; and
Kang had left the country, prompting Suzuki to verify the status of the properties with the
Mandaluyong City Registry of Deeds. 6. That when Suzuki bought the properties, he went to Orion to obtain possession of the
titles.
Before long, Suzuki learned that CCT No. 9118 representing the title to the Parking Slot No. 42
contained no annotations although it remained under the name of Cityland Pioneer. This The RTC Ruling
notwithstanding, Cityland Pioneer, through Assistant Vice President Rosario D. Perez, certified that
Kang had fully paid the purchase price of Unit. No. 53610 and Parking Slot No. 42.11 CCT No. 18186
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In its decision14 dated June 29, 2009, the Regional Trial Court (RTC), Branch 213, Mandaluyong City
ruled infavor of Suzuki and ordered Orion to deliver the CCT Nos. 18186 and 9118 to Suzuki.
The court found that Suzuki was an innocent purchaser for value whose rights over the properties
prevailed over Orion’s. The RTC further noted that Suzuki exerted efforts to verify the status of the
properties but he did not find any existing encumbrance inthe titles. Although Orion claims to have
purchased the property by way of a Dacion en Pago, Suzuki only learned about it two (2) months
after he bought the properties because Orion never bothered to register or annotate the Dacion en
Pagoin CCT Nos. 18186 and 9116.
The RTC further ordered Orion and Kang to jointly and severally pay Suzuki moral damages,
exemplary damages, attorney’s fees, appearance fees, expenses for litigation and cost ofsuit. Orion
timely appealed the RTC decision with the CA.
The CA Ruling
On August 23, 2012, the CA partially granted Orion’s appeal and sustained the RTC insofar as it
upheld Suzuki’s right over the properties. The CA further noted that Entry No. 73321/C-10186
pertaining to the withdrawal of investment of an SRRV only serves as a warning to an SRRV holder
about the implications of a conveyance of a property investment. It deviated from the RTC ruling,
however, by deleting the award for moral damages, exemplary damages, attorney’s fees, expenses
for litigation and cost of suit.
Orion sought a reconsideration of the CA decision but the CA denied the motion in its January 25,
2013 resolution. Orion then filed a petition for review on certiorariunder Rule 45 with this Court.
The Petition and Comment
Orion’s petition is based on the following grounds/arguments:15
1. The Deed of Sale executed by Kang in favor of Suzuki is null and void. Under Korean law,
any conveyance of a conjugal property should be made with the consent of both spouses;
2. Suzuki is not a buyer in good faith for he failed to check the owner’s duplicate copies of
the CCTs;
3. Knowledge of the PRA restriction under Entry No. 73321/C-10186, which prohibits any
conveyance or encumbrance of the property investment, defeats the alleged claim of good
faith by Suzuki; and
4. Orion should not be faulted for exercising due diligence.
In his Comment,16 Suzuki asserts that the issue on spousal consent was belatedly raised on appeal.
Moreover, proof of acquisition during the marital coverture is a condition sine qua nonfor the operation
of the presumption of conjugal ownership.17 Suzuki additionally maintains that he is a purchaser in
good faith, and is thus entitled to the protection of the law.
The Court’s Ruling
We deny the petition for lack of merit.
The Court may inquire into conclusions of fact when the inference made is manifestly mistaken
In a Rule 45 petition, the latitude of judicial review generally excludes a factual and evidentiary re-
evaluation, and the Court ordinarily abides by the uniform factual conclusions of the trial court and the
appellate court.18 In the present case, while the courts below both arrived at the same conclusion,
there appears tobe an incongruence in their factual findings and the legal principle they applied to the
attendant factual circumstances. Thus, we are compelled to examine certain factual issues in the
exercise of our sound discretion to correct any mistaken inference that may have been made.19
Philippine Law governs the transfer of real property
Orion believes that the CA erred in not ruling on the issue of spousal consent. We cannot uphold this
position, however, because the issue of spousal consent was only raised on appeal to the CA. It is a
well-settled principle that points of law, theories, issues, and arguments not brought to the attention of
the trial court cannot be raised for the first time on appeal and considered by a reviewing court.20 To
consider these belated arguments would violate basic principles of fairplay, justice, and due process.
Having said these, we shall nonetheless discuss the issues Orion belatedly raised, if only to put an
end to lingering doubts on the correctness of the denial of the present petition.
It is a universal principle thatreal or immovable property is exclusively subject to the laws of the
country or state where it is located.21 The reason is found in the very nature of immovable property —
its immobility. Immovables are part of the country and so closely connected to it that all rights over
them have their natural center of gravity there.22
Thus, all matters concerning the titleand disposition ofreal property are determined by what is known
as the lex loci rei sitae, which can alone prescribe the mode by which a title canpass from one person
to another, or by which an interest therein can be gained or lost.23 This general principle includes all
rules governing the descent, alienation and transfer of immovable property and the validity, effect and
construction of wills and other conveyances.24
This principle even governs the capacity of the person making a deed relating to immovable property,
no matter what its nature may be. Thus, an instrument will be ineffective to transfer title to land if the
person making it is incapacitated by the lex loci rei sitae, even though under the law of his domicile
and by the law of the place where the instrument is actually made, his capacity is undoubted.25
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On the other hand, property relations between spouses are governed principally by the national law of
the spouses.26 However, the party invoking the application of a foreign law has the burden of proving
the foreign law. The foreign law is a question of fact to be properly pleaded and proved as the judge
cannot take judicial notice of a foreign law.27 He is presumed to know only domestic or the law of the
forum.28
To prove a foreign law, the party invoking it must present a copy thereof and comply with Sections 24
and 25 of Rule 132 of the Revised Rules of Court which reads:
SEC. 24. Proof of official record. — The record of public documents referred to in paragraph (a) of
Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or
by a copy attested by the officer having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the
custody. If the office in which the record is kept is in a foreign country, the certificate may be made by
a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by
any officer in the foreign service of the Philippines stationed in the foreign country inwhich the record
is kept, and authenticated by the seal of his office. (Emphasis supplied)
SEC. 25. What attestation ofcopy must state. — Whenever a copy of a document or record is attested
for the purpose of the evidence, the attestation must state, in substance, that the copy is a correct
copy of the original, or a specific part thereof, as the case may be. The attestation must be under the
official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under
the seal of such court.
Accordingly, matters concerning the title and disposition of real property shall be governed by
Philippine law while issues pertaining to the conjugal natureof the property shall be governed by
South Korean law, provided it is proven as a fact.
In the present case, Orion, unfortunately failed to prove the South Korean law on the conjugal
ownership ofproperty. It merely attached a "Certification from the Embassy of the Republic of
Korea"29 to prove the existence of Korean Law. This certification, does not qualify as sufficient proof of
the conjugal nature of the property for there is no showing that it was properly authenticated bythe
seal of his office, as required under Section 24 of Rule 132.30
Accordingly, the International Law doctrine of presumed-identity approachor processual presumption
comes into play, i.e., where a foreign law is not pleaded or, evenif pleaded, is not proven, the
presumption is that foreign law is the same as Philippine Law.31
Under Philippine Law, the phrase "Yung Sam Kang ‘married to' Hyun Sook Jung" is merely
descriptive of the civil status of Kang.32 In other words, the import from the certificates of title is that
Kang is the owner of the properties as they are registered in his name alone, and that he is married to
Hyun Sook Jung.
We are not unmindful that in numerous cases we have held that registration of the property in the
name of only one spouse does not negate the possibility of it being conjugal or community
property.33 In those cases, however, there was proof that the properties, though registered in the
name of only one spouse, were indeed either conjugal or community properties.34 Accordingly, we see
no reason to declare as invalid Kang’s conveyance in favor of Suzuki for the supposed lack of
spousal consent.
The petitioner failed to adduce sufficient evidence to prove the due execution of the Dacion en Pago
Article 1544 of the New Civil Codeof the Philippines provides that:
ART. 1544. If the same thing should have been sold to different vendees, the ownership shall be
transferred to the person who may have first taken possession thereof in good faith, if it should be
movable property.
Should it be immovable property, the ownership shall belong to the person acquiring it who in good
faith first recorded it in the Registry of Property.
Should there be no inscription, the ownership shall pertain to the person who in good faith was first in
the possession; and, in the absence thereof, to the person who presents the oldest title, provided
there is good faith.
The application of Article 1544 of the New Civil Code presupposes the existence of two or more duly
executed contracts of sale. In the present case, the Deed of Sale dated August 26, 200335 between
Suzuki and Kang was admitted by Orion36 and was properly identified by Suzuki’s witness Ms. Mary
Jane Samin (Samin).37
It is not disputed, too, that the Deed of Sale dated August 26, 2003 was consummated. In a contract
of sale, the seller obligates himself to transfer the ownership of the determinate thing sold, and to
deliver the same to the buyer, who obligates himself to pay a price certain to the seller.38 The
execution of the notarized deed of saleand the actual transfer of possession amounted to delivery
that produced the legal effect of transferring ownership to Suzuki.39
On the other hand, although Orion claims priority in right under the principle of prius tempore, potior
jure (i.e.,first in time, stronger in right), it failedto prove the existence and due execution of the Dacion
en Pagoin its favor.
At the outset, Orion offered the Dacion en Pagoas Exhibit "5"with submarkings "5-a" to "5-c" to prove
the existence of the February 6, 2003 transaction in its Formal Offer dated July 20, 2008. Orion
likewise offered in evidence the supposed promissory note dated September 4, 2002 as Exhibit
"12"to prove the existence of the additional ₱800,000.00 loan. The RTC, however, denied the
admission of Exhibits "5" and "12,"among others, in its order dated August 19, 2008 "since the same
[were] not identified in court by any witness."40
Despite the exclusion of its most critical documentary evidence, Orion failed to make a tender
ofexcluded evidence, as provided under Section 40, Rule 132 of the Rules of Court. For this reason
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alone, we are prevented from seriously considering Exhibit "5" and its submarkings and Exhibit "12"
in the present petition.
Moreover, even if we consider Exhibit "5" and its submarkings and Exhibit "12" in the present petition,
the copious inconsistencies and contradictions in the testimonial and documentary evidence of Orion,
militate against the conclusion that the Dacion en Pagowas duly executed. First, there appears to be
no due and demandable obligation when the Dacion en Pago was executed, contrary to the
allegations of Orion. Orion’s witness Perez tried to impress upon the RTC that Kang was in default in
his ₱1,800,000.00 loan. During his direct examination, he stated:
ATTY. CRUZAT:
Q: Okay, so this loan of ₱1.8 million, what happened to this loan, Mr. Witness?
A: Well it became past due, there has been delayed interest payment by Mr. Kangand...
Q: So what did you do after there were defaults[?]
A: We have to secure the money or the investment of the bank through loans and we have
executed a dacion en pagobecause Mr. Kang said he has no money. So we just execute[d]
the dacion en pago rather than going through the Foreclosure proceedings.
xxxx
Q: Can you tell the court when was this executed?
A: February 6, 2003, your Honor.41
A reading of the supposed promissory note, however, shows that there was nodefault to speak of
when the supposed Dacion en Pagowas executed.
Based on the promissory note, Kang’s loan obligation wouldmature only on August 27, 2003. Neither
can Orion claim that Kang had been in default in his installment payments because the wordings of
the promissory note provide that "[t]he principal of this loanand its interest and other charges shall be
paid by me/us in accordance hereunder: SINGLE PAYMENT LOANS.42 "There was thus no due and
demandable loan obligation when the alleged Dacion en Pago was executed.
Second, Perez, the supposed person who prepared the Dacion en Pago,appears to only have a
vague idea of the transaction he supposedly prepared. During his cross-examination, he testified:
ATTY. DE CASTRO:
Q: And were you the one who prepared this [dacion en pago] Mr. witness?
A: Yes, sir. I personally prepared this.
xxxx
Q: So this 1.8 million pesos is already inclusive of all the penalties, interest and surcharge
due from Mr. Yung Sam Kang?
A: It’s just the principal, sir.
Q: So you did not state the interest [and] penalties?
A: In the [dacion en pago], we do not include interest, sir. We may actually includethat but....
Q: Can you read the Second Whereas Clause, Mr. Witness?
A: Whereas the first party failed to pay the said loan to the second party and as of February
10, 2003, the outstanding obligation which is due and demandable principal and interest and
other charges included amounts to ₱1,800,000.00 pesos, sir.
xxxx
Q: You are now changing your answer[.] [I]t now includes interest and other charges, based
on this document?
A: Yes, based on that document, sir.43
Third, the Dacion en Pago,mentioned that the ₱1,800,000.00 loan was secured by a real
estate mortgage. However, no document was ever presented to prove this real estate
mortgage aside from it being mentioned in the Dacion en Pago itself.
ATTY. DE CASTRO:
Q: Would you know if there is any other document like a supplement to that Credit Line
Agreement referring to this 1.8 million peso loan by Mr. Yung Sam Kang which says that
there was a subsequent collateralization or security given by Mr. Yung [Sam]
Kang for the loan?
xxxx
A: The [dacion en pago], sir.44
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Fourth,the Dacion en Pago was first mentioned only two (2) months after Suzuki and Samin
demanded the delivery of the titles sometime in August 2003,and after Suzuki caused the annotation
of his affidavit of adverse claim. Records show that it was only on October 9, 2003, when Orion,
through its counsel, Cristobal Balbin Mapile & Associates first spoke of the Dacion en Pago.45 Not
even Perez mentioned any Dacion en Pago on October 1, 2003, when he personally received a letter
demanding the delivery of the titles.Instead, Perez refused to accept the letter and opted to first
consult with his lawyer.46
Notably, even the October 9, 2003 letter contained material inconsistencies in its recital of facts
surrounding the execution of the Dacion en Pago. In particular, it mentioned that "on [September 4,
2002], after paying the original loan, [Kang] applied and was granted a new Credit Line Facility by
[Orion] x x x for ONE MILLION EIGHT HUNDRED THOUSAND PESOS (₱1,800,000.00)." Perez,
however, testified that there was "no cash movement" in the original ₱1,000,000.00 loan. In his
testimony, he said:
COURT:
xxxx
Q: Would you remember what was the subject matter of that real estate mortgage for that
first ₱1,000,000.00 loan?
A: It’s a condominium Unit in Cityland, sir.
xxxx
Q: Would you recall if there was any payment by Mr. Yung Sam Kang of this ₱1,000,000.00
loan?
A: None sir.
Q: No payments?
A: None sir.
Q: And from 1999 to 2002, there was no payment, either by way of payment to the principal,
by way ofpayment of interest, there was no payment by Mr. Yung Sam Kang of this loan?
A: Literally, there was no actual cash movement, sir.
Q: There was no actual cash?
A: Yes, sir.
Q: And yet despite no payment, the bank Orion Savings Bank still extended an ₱800,000.00
additional right?
A: Yes, sir.47
Fifth, it is undisputed that notwithstanding the supposed execution of theDacion en Pago on February
2, 2003, Kang remained in possession of the condominium unit. In fact, nothing in the records shows
that Orion even bothered to take possession of the property even six (6) months after the supposed
date of execution of the Dacion en Pago. Kang was even able to transfer possession of the
condominium unit to Suzuki, who then made immediate improvements thereon. If Orion really
purchased the condominium unit on February 2, 2003 and claimed to be its true owner, why did it not
assert its ownership immediately after the alleged sale took place? Why did it have to assert its
ownership only after Suzuki demanded the delivery of the titles? These gaps have remained
unanswered and unfilled.
In Suntay v. CA,48 we held that the most prominent index of simulation is the complete absence of
anattempt on the part of the vendee to assert his rights of ownership over the property in question.
After the sale, the vendee should have entered the land and occupied the premises. The absence of
any attempt on the part of Orion to assert its right of dominion over the property allegedly soldto it is a
clear badge of fraud. That notwithstanding the execution of the Dacion en Pago, Kang remained in
possession of the disputed condominium unit – from the time of the execution of the Dacion en
Pagountil the property’s subsequent transfer to Suzuki – unmistakably strengthens the fictitious
nature of the Dacion en Pago.
These circumstances, aside from the glaring inconsistencies in the documents and testimony of
Orion’s witness, indubitably prove the spurious nature of the Dacion en Pago.
The fact that the Dacion en Pago
is a notarized document does not
support the conclusion that the
sale it embodies is a true
conveyance
Public instruments are evidence of the facts that gave rise to their execution and are to be considered
as containing all the terms of the agreement.49 While a notarized document enjoys this presumption,
"the fact that a deed is notarized is not a guarantee of the validity of its contents."50 The presumption
of regularity of notarized documents is not absolute and may be rebutted by clear and convincing
evidence to the contrary.51
In the present case, the presumption cannot apply because the regularity in the execution of the
Dacion en Pago and the loan documents was challenged in the proceedings below where their prima
facievalidity was overthrown by the highly questionable circumstances surrounding their execution.52
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Effect of the PRA restriction on
the validity of Suzuki’s title to the
property

Orion argues that the PRA restriction in CCT No. 18186 affects the conveyance to Suzuki. In
particular, Orion assails the status of Suzuki as a purchaser in good faith in view of the express PRA
restriction contained in CCT No. 18186.53

We reject this suggested approachoutright because, to our mind, the PRA restriction cannot affect the
conveyance in favor of Suzuki. On this particular point, we concur withthe following findings of the
CA:

x x x the annotation merely servesas a warning to the owner who holds a Special Resident Retiree’s
Visa(SRRV) that he shall lose his visa if he disposes his property which serves as his investment in
order to qualify for such status. Section 14 of the Implementing Investment Guidelines under Rule
VIII-A of the Rules and Regulations Implementing Executive Order No. 1037, Creating the Philippine
Retirement Park System Providing Funds Therefor and For Other Purpose ( otherwise known as the
Philippine Retirement Authority) states:

Section 14. Should the retiree-investor withdraw his investment from the Philippines, or transfer the
same to another domestic enterprise, orsell, convey or transfer his condominium unit or units to
another person, natural or juridical without the prior approval of the Authority, the Special Resident
Retiree’s Visa issued to him, and/or unmarried minor child or children[,] may be cancelled or revoked
by the Philippine Government, through the appropriate government department or agency, upon
recommendation of the Authority.54

Moreover, Orion should not be allowed to successfully assail the good faith of Suzuki on the basis of
the PRA restriction. Orion knew of the PRA restriction when it transacted with Kang. Incidentally,
Orion admitted accommodating Kang’s request to cancel the mortgage annotation despite the lack of
payment to circumvent the PRA restriction. Orion, thus, is estopped from impugning the validity of the
conveyance in favor of Suzuki on the basis of the PRA restriction that Orion itself ignored and
"attempted" to circumvent.

With the conclusion that Orion failed to prove the authenticity of the Dacion en Pago, we see no
reason for the application of the rules on double sale under Article 1544 of the New Civil Code.
Suzuki, moreover, successfully adduced sufficient evidence to establish the validity of conveyance in
his favor.

WHEREFORE, premises considered, we DENY the petition for lack of merit. Costs against petitioner
Orion Savings Bank.

SO ORDERED.

ARTURO D. BRION
Associate Justice

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