Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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,   as well as the principle that laws to be valid and
1

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.

c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.

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   said petitioners are without the
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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,   this Court held that while the general rule is that "a writ of mandamus would be granted to a
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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,  this Court has ruled that publication in the Official Gazette is necessary in those
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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
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   to wit:
8
 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   sustained the right of a party
9

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.   Neither the subject
10

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,   the Court, through Justice
11

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.

Relova, J., concurs.

Aquino, J., took no part.

Concepcion, Jr., J., is on leave.

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 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.   I am likewise in
1

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.   It would indeed be to reduce it to the level of
3

mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable.    Publication, to
4

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.    In civil
5

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.   In traditional terminology, there could arise then a question of
6

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,  citing the settled principle based on due process
1

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.   To sustain respondents' misreading that
2

"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   would be to nullify and render nugatory the Civil Code's
3

indispensable and essential requirement of prior publication in the Official Gazette by the 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 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.   I am likewise in
1

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.   It would indeed be to reduce it to the level of
3

mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable.    Publication, to
4

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.    In civil
5

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.   In traditional terminology, there could arise then a question of
6

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,  citing the settled principle based on due process
1

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.   To sustain respondents' misreading that
2

"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   would be to nullify and render nugatory the Civil Code's
3

indispensable and essential requirement of prior publication in the Official Gazette by the 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.

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.

2 Anti-Chinese League vs. Felix, 77 Phil. 1012; Costas vs. Aidanese, 45 Phil. 345;
Almario vs. City Mayor, 16 SCRA 151;Parting vs. San Jose Petroleum, 18 SCRA 924;
Dumlao vs. Comelec, 95 SCRA 392.

3 16 Phil. 366, 378.

4 Camacho vs. Court of Industrial Relations, 80 Phil 848; Mejia vs. Balolong, 81 Phil.
486; Republic of the Philippines vs. Encamacion, 87 Phil. 843; Philippine Blooming Mills,
Inc. vs. Social Security System, 17 SCRA 1077; Askay vs. Cosalan, 46 Phil. 179.

5 1 Manresa, Codigo Civil 7th Ed., p. 146.

6 People vs. Que Po Lay, 94 Phil. 640; Balbuena et al. vs. Secretary of Education, et al.,
110 Phil. 150.
7 82 SCRA 30, dissenting opinion.

8 308 U.S. 371, 374.

9 93 Phil.. 68,.

10 The report was prepared by the Clerk of Court after Acting Director Florendo S.
Pablo Jr. of the Government Printing Office, failed to respond to her letter-request
regarding the respective dates of publication in the Official Gazette of the presidential
issuances listed therein. No report has been submitted by the Clerk of Court as to the
publication or non-publication of other presidential issuances.

11 129 SCRA 174.

Fernando, CJ.:

1 Separate Opinion of Justice Plana, first paragraph. He mentioned in tills connection

Article 7, Sec. 21 of the Wisconsin Constitution and State ex rel. White v. Grand
Superior Ct., 71 ALR 1354, citing the Constitution of Indiana, U.S.A

2 Ibid, closing paragraph.

3 Learned Hand, The Spirit of Liberty 104 (1960).

4 Cardozo, The Growth of the Law, 3 (1924).

5 Cf. Nunez v. Sandiganbayan, G.R. No. 50581-50617, January 30, 1982, 111 SCRA
433.

6 Cf. Alalayan v. National Power Corporation, L-24396, July 29, 1968, 24 SCRA 172.

Teehankee, J.:

1 People vs. de Dios, G.R. No. 11003, Aug. 3l, 1959, per the late Chief Justice Paras.

2 Notes in brackets supplied.

3 Respondents: comment, pp. 14-15.

Plana, J.:

* See e.g., Wisconsin Constitution, Art. 7, Sec. 21: "The legislature shall provide
publication of all statute laws ... and no general law shall be in force until published."
See also S ate ex rel. White vs. Grand Superior Ct., 71 ALR 1354, citing Constitution of
Indiana, U.S.A.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 179579               February 1, 2012

COMMISSIONER OF CUSTOMS and the DISTRICT COLLECTOR OF THE PORT OF

SUBIC, Petitioners,
vs.
HYPERMIX FEEDS CORPORATION, Respondent.

DECISION

SERENO, J.:

Before us is a Petition for Review under Rule 45, assailing the Decision and the Resolution of the Court
1  2  3 

of Appeals (CA), which nullified the Customs Memorandum Order (CMO) No. 27-2003 on the tariff 4 

classification of wheat issued by petitioner Commissioner of Customs.

The antecedent facts are as follows:

On 7 November 2003, petitioner Commissioner of Customs issued CMO 27-2003. Under the
Memorandum, for tariff purposes, wheat was classified according to the following: (1) importer or
consignee; (2) country of origin; and (3) port of discharge. The regulation provided an exclusive list of
5 

corporations, ports of discharge, commodity descriptions and countries of origin. Depending on these
factors, wheat would be classified either as food grade or feed grade. The corresponding tariff for food
grade wheat was 3%, for feed grade, 7%.

CMO 27-2003 further provided for the proper procedure for protest or Valuation and Classification
Review Committee (VCRC) cases. Under this procedure, the release of the articles that were the
subject of protest required the importer to post a cash bond to cover the tariff differential.
6

A month after the issuance of CMO 27-2003, on 19 December 2003, respondent filed a Petition for
Declaratory Relief with the Regional Trial Court (RTC) of Las Piñas City. It anticipated the
7 

implementation of the regulation on its imported and perishable Chinese milling wheat in transit from
China. Respondent contended that CMO 27-2003 was issued without following the mandate of the
8 

Revised Administrative Code on public participation, prior notice, and publication or registration with the
University of the Philippines Law Center.

Respondent also alleged that the regulation summarily adjudged it to be a feed grade supplier without
the benefit of prior assessment and examination; thus, despite having imported food grade wheat, it
would be subjected to the 7% tariff upon the arrival of the shipment, forcing them to pay 133% more
than was proper.

Furthermore, respondent claimed that the equal protection clause of the Constitution was violated when
the regulation treated non-flour millers differently from flour millers for no reason at all.

Lastly, respondent asserted that the retroactive application of the regulation was confiscatory in nature.

On 19 January 2004, the RTC issued a Temporary Restraining Order (TRO) effective for twenty (20)
days from notice.9

Petitioners thereafter filed a Motion to Dismiss. They alleged that: (1) the RTC did not have jurisdiction
10 

over the subject matter of the case, because respondent was asking for a judicial determination of the
classification of wheat; (2) an action for declaratory relief was improper; (3) CMO 27-2003 was an
internal administrative rule and not legislative in nature; and (4) the claims of respondent were
speculative and premature, because the Bureau of Customs (BOC) had yet to examine respondent’s
products. They likewise opposed the application for a writ of preliminary injunction on the ground that
they had not inflicted any injury through the issuance of the regulation; and that the action would be
contrary to the rule that administrative issuances are assumed valid until declared otherwise.

On 28 February 2005, the parties agreed that the matters raised in the application for preliminary
injunction and the Motion to Dismiss would just be resolved together in the main case. Thus, on 10
March 2005, the RTC rendered its Decision without having to resolve the application for preliminary
11 

injunction and the Motion to Dismiss.

The trial court ruled in favor of respondent, to wit:

WHEREFORE, in view of the foregoing, the Petition is GRANTED and the subject Customs
Memorandum Order 27-2003 is declared INVALID and OF NO FORCE AND EFFECT. Respondents
Commissioner of Customs, the District Collector of Subic or anyone acting in their behalf are to
immediately cease and desist from enforcing the said Customs Memorandum Order 27-2003.

SO ORDERED. 12

The RTC held that it had jurisdiction over the subject matter, given that the issue raised by respondent
concerned the quasi-legislative powers of petitioners. It likewise stated that a petition for declaratory
relief was the proper remedy, and that respondent was the proper party to file it. The court considered
that respondent was a regular importer, and that the latter would be subjected to the application of the
regulation in future transactions.

With regard to the validity of the regulation, the trial court found that petitioners had not followed the
basic requirements of hearing and publication in the issuance of CMO 27-2003. It likewise held that
petitioners had "substituted the quasi-judicial determination of the commodity by a quasi-legislative
predetermination." The lower court pointed out that a classification based on importers and ports of
13 

discharge were violative of the due process rights of respondent.

Dissatisfied with the Decision of the lower court, petitioners appealed to the CA, raising the same
allegations in defense of CMO 27-2003. The appellate court, however, dismissed the appeal. It held
14 

that, since the regulation affected substantial rights of petitioners and other importers, petitioners should
have observed the requirements of notice, hearing and publication.

Hence, this Petition.

Petitioners raise the following issues for the consideration of this Court:

I. THE COURT OF APPEALS DECIDED A QUESTION OF SUBSTANCE WHICH IS NOT IN

ACCORD WITH THE LAW AND PREVAILING JURISPRUDENCE.

II. THE COURT OF APPEALS GRAVELY ERRED IN DECLARING THAT THE TRIAL COURT
HAS JURISDICTION OVER THE CASE.

The Petition has no merit.

We shall first discuss the propriety of an action for declaratory relief.

Rule 63, Section 1 provides:

Who may file petition. – Any person interested under a deed, will, contract or other written instrument,
or whose rights are affected by a statute, executive order or regulation, ordinance, or any other
governmental regulation may, before breach or violation thereof, bring an action in the appropriate
Regional Trial Court to determine any question of construction or validity arising, and for a declaration
of his rights or duties, thereunder.

The requirements of an action for declaratory relief are as follows: (1) there must be a justiciable
controversy; (2) the controversy must be between persons whose interests are adverse; (3) the party
seeking declaratory relief must have a legal interest in the controversy; and (4) the issue involved must
be ripe for judicial determination. We find that the Petition filed by respondent before the lower court
15 

meets these requirements.

First, the subject of the controversy is the constitutionality of CMO 27-2003 issued by petitioner
Commissioner of Customs. In Smart Communications v. NTC, we held: 16 

The determination of whether a specific rule or set of rules issued by an administrative agency
contravenes the law or the constitution is within the jurisdiction of the regular courts. Indeed, the
Constitution vests the power of judicial review or the power to declare a law, treaty, international or
executive agreement, presidential decree, order, instruction, ordinance, or regulation in the courts,
including the regional trial courts. This is within the scope of judicial power, which includes the authority
of the courts to determine in an appropriate action the validity of the acts of the political departments.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Emphasis supplied)

Meanwhile, in Misamis Oriental Association of Coco Traders, Inc. v. Department of Finance

Secretary, we said:
17 

xxx [A] legislative rule is in the nature of subordinate legislation, designed to implement a primary
legislation by providing the details thereof. xxx

In addition such rule must be published. On the other hand, interpretative rules are designed to provide
guidelines to the law which the administrative agency is in charge of enforcing.

Accordingly, in considering a legislative rule a court is free to make three inquiries: (i) whether the rule
is within the delegated authority of the administrative agency; (ii) whether it is reasonable;
and (iii) whether it was issued pursuant to proper procedure. But the court is not free to substitute its
judgment as to the desirability or wisdom of the rule for the legislative body, by its delegation of
administrative judgment, has committed those questions to administrative judgments and not to judicial
judgments. In the case of an interpretative rule, the inquiry is not into the validity but into the
correctness or propriety of the rule. As a matter of power a court, when confronted with an interpretative
rule, is free to (i) give the force of law to the rule; (ii) go to the opposite extreme and substitute its
judgment; or (iii) give some intermediate degree of authoritative weight to the interpretative rule.
(Emphasis supplied)

Second, the controversy is between two parties that have adverse interests. Petitioners are summarily
imposing a tariff rate that respondent is refusing to pay.

Third, it is clear that respondent has a legal and substantive interest in the implementation of CMO 27-
2003. Respondent has adequately shown that, as a regular importer of wheat, on 14 August 2003, it
has actually made shipments of wheat from China to Subic. The shipment was set to arrive in
December 2003. Upon its arrival, it would be subjected to the conditions of CMO 27-2003. The
regulation calls for the imposition of different tariff rates, depending on the factors enumerated therein.
Thus, respondent alleged that it would be made to pay the 7% tariff applied to feed grade wheat,
instead of the 3% tariff on food grade wheat. In addition, respondent would have to go through the
procedure under CMO 27-2003, which would undoubtedly toll its time and resources. The lower court
correctly pointed out as follows:

xxx As noted above, the fact that petitioner is precisely into the business of importing wheat, each and
every importation will be subjected to constant disputes which will result into (sic) delays in the delivery,
setting aside of funds as cash bond required in the CMO as well as the resulting expenses thereof. It is
easy to see that business uncertainty will be a constant occurrence for petitioner. That the sums
involved are not minimal is shown by the discussions during the hearings conducted as well as in the
pleadings filed. It may be that the petitioner can later on get a refund but such has been foreclosed
because the Collector of Customs and the Commissioner of Customs are bound by their own CMO.
Petitioner cannot get its refund with the said agency. We believe and so find that Petitioner has
presented such a stake in the outcome of this controversy as to vest it with standing to file this
petition. (Emphasis supplied)
18 

Finally, the issue raised by respondent is ripe for judicial determination, because litigation is
inevitable for the simple and uncontroverted reason that respondent is not included in the enumeration
19 

of flour millers classified as food grade wheat importers. Thus, as the trial court stated, it would have to
file a protest case each time it imports food grade wheat and be subjected to the 7% tariff.

It is therefore clear that a petition for declaratory relief is the right remedy given the circumstances of
the case.

Considering that the questioned regulation would affect the substantive rights of respondent as
explained above, it therefore follows that petitioners should have applied the pertinent provisions of
Book VII, Chapter 2 of the Revised Administrative Code, to wit:

Section 3. Filing. – (1) Every agency shall file with the University of the Philippines Law Center three (3)
certified copies of every rule adopted by it. Rules in force on the date of effectivity of this Code which
are not filed within three (3) months from that date shall not thereafter be the bases of any sanction
against any party of persons.
x x x           x x x          x x x

Section 9. Public Participation. - (1) If not otherwise required by law, an agency shall, as far as
practicable, publish or circulate notices of proposed rules and afford interested parties the opportunity to
submit their views prior to the adoption of any rule.

(2) In the fixing of rates, no rule or final order shall be valid unless the proposed rates shall have
been published in a newspaper of general circulation at least two (2) weeks before the first
hearing thereon.

(3) In case of opposition, the rules on contested cases shall be observed.

When an administrative rule is merely interpretative in nature, its applicability needs nothing further than
its bare issuance, for it gives no real consequence more than what the law itself has already prescribed.
When, on the other hand, the administrative rule goes beyond merely providing for the means that can
facilitate or render least cumbersome the implementation of the law but substantially increases the
burden of those governed, it behooves the agency to accord at least to those directly affected a chance
to be heard, and thereafter to be duly informed, before that new issuance is given the force and effect of
law. 20

Likewise, in Tañada v. Tuvera, we held:21 

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. (Emphasis supplied)

Because petitioners failed to follow the requirements enumerated by the Revised Administrative Code,
the assailed regulation must be struck down.

Going now to the content of CMO 27-3003, we likewise hold that it is unconstitutional for being violative
of the equal protection clause of the Constitution.

The equal protection clause means that no person or class of persons shall be deprived of the same
protection of laws enjoyed by other persons or other classes in the same place in like circumstances.
Thus, the guarantee of the equal protection of laws is not violated if there is a reasonable classification.
For a classification to be reasonable, it must be shown that (1) it rests on substantial distinctions; (2) it
is germane to the purpose of the law; (3) it is not limited to existing conditions only; and (4) it applies
equally to all members of the same class. 22

Unfortunately, CMO 27-2003 does not meet these requirements. We do not see how the quality of
wheat is affected by who imports it, where it is discharged, or which country it came from.

Thus, on the one hand, even if other millers excluded from CMO 27-2003 have imported food grade
wheat, the product would still be declared as feed grade wheat, a classification subjecting them to 7%
tariff. On the other hand, even if the importers listed under CMO 27-2003 have imported feed grade
wheat, they would only be made to pay 3% tariff, thus depriving the state of the taxes due. The
regulation, therefore, does not become disadvantageous to respondent only, but even to the state.

It is also not clear how the regulation intends to "monitor more closely wheat importations and thus
prevent their misclassification." A careful study of CMO 27-2003 shows that it not only fails to achieve
this end, but results in the opposite. The application of the regulation forecloses the possibility that other
corporations that are excluded from the list import food grade wheat; at the same time, it creates an
assumption that those who meet the criteria do not import feed grade wheat. In the first case, importers
are unnecessarily burdened to prove the classification of their wheat imports; while in the second, the
state carries that burden.
Petitioner Commissioner of Customs also went beyond his powers when the regulation limited the
customs officer’s duties mandated by Section 1403 of the Tariff and Customs Law, as amended. The
law provides:

Section 1403. – Duties of Customs Officer Tasked to Examine, Classify, and Appraise Imported
Articles. – The customs officer tasked to examine, classify, and appraise imported articles shall
determine whether the packages designated for examination and their contents are in accordance with
the declaration in the entry, invoice and other pertinent documents and shall make return in such a
manner as to indicate whether the articles have been truly and correctly declared in the entry as regard
their quantity, measurement, weight, and tariff classification and not imported contrary to law. He shall
submit samples to the laboratory for analysis when feasible to do so and when such analysis is
necessary for the proper classification, appraisal, and/or admission into the Philippines of imported
articles.

Likewise, the customs officer shall determine the unit of quantity in which they are usually bought and
sold, and appraise the imported articles in accordance with Section 201 of this Code.

Failure on the part of the customs officer to comply with his duties shall subject him to the penalties
prescribed under Section 3604 of this Code. 1âwphi1

The provision mandates that the customs officer must first assess and determine the classification of
the imported article before tariff may be imposed. Unfortunately, CMO 23-2007 has already classified
the article even before the customs officer had the chance to examine it. In effect, petitioner
Commissioner of Customs diminished the powers granted by the Tariff and Customs Code with regard
to wheat importation when it no longer required the customs officer’s prior examination and assessment
of the proper classification of the wheat.

It is well-settled that rules and regulations, which are the product of a delegated power to create new
and additional legal provisions that have the effect of law, should be within the scope of the statutory
authority granted by the legislature to the administrative agency. It is required that the regulation be
germane to the objects and purposes of the law; and that it be not in contradiction to, but in conformity
with, the standards prescribed by law.23

In summary, petitioners violated respondent’s right to due process in the issuance of CMO 27-2003
when they failed to observe the requirements under the Revised Administrative Code. Petitioners
likewise violated respondent’s right to equal protection of laws when they provided for an unreasonable
classification in the application of the regulation. Finally, petitioner Commissioner of Customs went
beyond his powers of delegated authority when the regulation limited the powers of the customs officer
to examine and assess imported articles.

WHEREFORE, in view of the foregoing, the Petition is DENIED.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

BIENVENIDO L. REYES
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA
Chief Justice

Footnotes

Rollo, pp. 124-142.

1 

Id. at 33-46.
2 

Id. at 47.
3 

Records, pp. 16-18.

4 

SUBJECT: Tariff Classification of Wheat

5 

In order to monitor more closely wheat importations and thus prevent their
misclassification, the following are hereby prescribed:

1. For tariff purposes, wheat shall be classified as follows:

1.1 Under HS 1001.9090 (Food Grade) when all the following elements are present:

1.1.1 the importer/consignee of the imported wheat is a flour miller as per attached list
(Annex ‘A’), which shall form as integral part of this Order

1.1.2 the wheat importation consists of any of those listed in Annex ‘A’ according to the
country of origin indicated therein

1.1.3 the wheat importation is entered/unloaded in the Port of Discharge indicated

opposite the name of the flour miller, as per Annex ‘A’

1.2 Under HS 1001.9010 (Feed Grade)

1.2.1 When any or all of the elements prescribed under 1.1 above is not present.

1.2.2 All other wheat importations by non-flour millers, i.e., importers/consignees NOT
listed in Annex ‘A’

SUBJECT: Tariff Classification of Wheat

6 

x x x           x x x          x x x

2. Any issue arising from this Order shall be resolved in an appropriate protest or VCRC
case.

3. In case of a VCRC case, the following applies:

3.1 The shipment may qualify for Tentative Release upon payment of the taxes and
duties as per declaration and the posting of cash bond to cover the tariff differential.

3.2 The Tentative Release granted by the VCRC shall, prior to the release of the
shipment from Customs custody, be subject to representative. For this purpose, the
District/Port Collector concerned shall forward to the Office of the Commissioner the
Tentative Release papers, together with all pertinent shipping and supporting
documents, including, but not limited to, contract of sale, phytosanitary certificate and
certificate of quality.
 In the case of Outports, the required documents shall be faxed to the Office of the
Commissioner of Customs to any of these numbers: 527-1953/527-4573.

3.3 In resolving the classification issue, the VCRC shall consider the import/consignee,
type/source of wheat and port of discharge of the wheat importation, as indicated in
Annex ‘A’, and require the proofs/evidences (sic), including, but not limited to, proofs of
sale or consumption of said wheat importation, certificate of quality issued by
manufacturing country and contract of sale.

3.4 Any VCRC decision adverse to the government shall be subject to automatic review
by the Commissioner of Customs.

Rollo¸ pp. 158-168.

7 

Records, p. 12.
8 

Rollo, pp. 58-59.

9 

10 
Id. at 60-78.

11 
Id. at 108-114; penned by Judge Romeo C. De Leon.

12 
Id. at 114.

13 
Id. at 112.

14 
Id. at 117-122.

15 
Tolentino v. Board of Accountancy, 90 Phil. 83 (1951).

16 
456 Phil. 145 (2003).

17 
G.R. No. 108524, 10 November 1994, 238 SCRA 63, 69-70.

18 
Rollo, p. 112.

19 
Office of the Ombudsman v. Ibay, 416 Phil. 659 (2001).

20 
CIR v. Michel J. Lhuiller Pawnshop Inc., 453 Phil. 1043 (2003).

21 
220 Phil. 422 (1985).

22 
Philippine Rural Electric Cooperatives Association, Inc. v. DILG, 451 Phil. 683 (2003).

Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles v. Home Development Mutual
23 

Fund, 389 Phil. 296 (2000).

 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-68385 May 12, 1989

ILDEFONSO O. ELEGADO, as Ancillary Administrator of the Testate Estate of the late WARREN
TAYLOR GRAHAM, petitioner
vs.
HON. COURT OF TAX APPEALS and COMMISSIONER OF INTERNAL REVENUE respondents.

Agrava, Lucero & Gineta for petitioners.

The Office of the Solictor General for public respondents.

CRUZ, J.:

What the petitioner presents as a rather complicated problem is in reality a very simple question from
the viewpoint of the Solicitor General. We agree with the latter. There is actually only one issue to be
resolved in this action. That issue is whether or not the respondent Court of Tax Appeals erred in
dismissing the petitioner's appeal on grounds of jurisdiction and lack of a cause of action.

Appeal from what? That indeed is the question.

But first the facts.

On March 14, 1976, Warren Taylor Graham, an American national formerly resident in the Philippines,
died in Oregon, U.S.A.   As he left certain shares of stock in the Philippines, his son, Ward Graham,
1

filed an estate tax return on September 16, 1976, with the Philippine Revenue Representative in San
Francisco, U.S.A.  2

On the basis of this return, the respondent Commissioner of Internal Revenue assessed the decedent's
estate an estate tax in the amount of P96,509.35 on February 9, 1978.  This assessment was protested
3

on March 7, 1978, by the law firm of Bump, Young and Walker on behalf of the estate .   The protest
4

was denied by the Commissioner on July 7, 1978.  No further action was taken by the estate in pursuit
5

of that protest.

Meanwhile, on January 18, 1977, the decedent's will had been admitted to probate in the Circuit Court
of Oregon   Ward Graham, the designated executor, then appointed Ildefonso Elegado, the herein
6

petitioner, as his attorney-in-fact for the allowance of the will in the Philippines.
7

Pursuant to such authority, the petitioner commenced probate proceedings in the Court of First Instance
of Rizal.   The will was allowed on December 18, 1978, with the petitioner as ancillary administrator.   As
8 9

such, he filed a second estate tax return with the Bureau of Internal Revenue on June 4, 1980. 10
On the basis of this second return, the Commissioner imposed an assessment on the estate in the
amount of P72,948.87.  This was protested on behalf of the estate by the Agrava, Lucero and Gineta
11

Law Office on August 13, 1980. 12

While this protest was pending, the Commissioner filed in the probate proceedings a motion for the
allowance of the basic estate tax of P96,509.35 as assessed on February 9, 1978.  He said that this
13

liability had not yet been paid although the assessment had long become final and executory.

The petitioner regarded this motion as an implied denial of the protest filed on August 13, 1980, against
the second assessment of P72,948.87.  On this understanding, he filed on September 15, 1981, a
14

petition for review with the Court of Tax Appeals challenging the said assessment.  15

The Commissioner did not immediately answer (in fact, as the petitioner stressed, no answer was filed
during a delay of 195 days) and in the end instead cancelled the protested assessment in a letter to the
decedent's estate dated March 31, 1982.  This cancellation was notified to the Court of Tax Appeals in
16

a motion to dismiss on the ground that the protest had become moot and academic. 17

The motion was granted and the petition dismissed on April 25, 1984.  The petitioner then came to this
18

Court on certiorari under Rule 45 of the Rules of Court.

The petitioner raises three basic questions, to wit, (1) whether the shares of stocks left by the decedent
should be treated as his exclusive, and not conjugal, property; (2) whether the said stocks should be
assessed as of the time of the owner's death or six months thereafter; and (3) whether the appeal filed
with the respondent court should be considered moot and academic.

We deal first with the third issue as it is decisive of this case.

In the letter to the decedent's estate dated March 31, 1982, the Commissioner of Internal Revenue
wrote as follows:

Estate of WARREN T. GRAHAM c/o Mr. ILDEFENSO O. ELEGADO Ancillary Administrator Philex
Building cor. Brixton & Fairlane Sts. Pasig, Metro Manila

Sir:

This is with regard to the estate of the late WARREN TAYLOR GRAHAM, who died a
resident of Oregon, U.S.A. on March 14, 1976. It appears that two (2) letters of demand
were issued by this Bureau. One is for the amount of P96,509.35 based on the first
return filed, and the other in the amount of P72,948.87, based on the second return
filed.

It appears that the first assessment of P96,509.35 was issued on February 9, 1978 on
the basis of the estate tax return filed on September 16, 1976. The said assessment
was, however, protested in a letter dated March 7, 1978 but was denied on July 7, 1978.
Since no appeal was made within the regulatory period, the same has become final.

In view thereof, it is requested that you settle the aforesaid assessment for P96,509.35
within fifteen (15) days upon receipt hereof to the Receivable Accounts Division, this
Bureau, BIR National Office Building, Diliman, Quezon City. The assessment for
P72,949.57 dated July 3, 1980, referred to above is hereby cancelled.

Very truly yours,

(SGD.) RUBEN B. ANCHETA Acting Commissioner  19

It is obvious from the express cancellation of the second assessment for P72,948.87 that the petitioner
had been deprived of a cause of action as it was precisely from this assessment that he was appealing.

In its decision, the Court of Tax Appeals said that the petition questioning the assessment of July 3,
1980, was "premature" since the protest to the assessment had not yet been resolved.  As a matter of
20

fact it had: the said assessment had been cancelled by virtue of the above-quoted letter. The
respondent court was on surer ground, however, when it followed with the finding that the said
cancellation had rendered the petition moot and academic. There was really no more assessment to
review.

The petitioner argues that the issuance of the second assessment on July 3, 1980, had the effect of
canceling the first assessment of February 9, 1978, and that the subsequent cancellation of the second
assessment did not have the effect of automatically reviving the first. Moreover, the first assessment is
not binding on him because it was based on a return filed by foreign lawyers who had no knowledge of
our tax laws or access to the Court of Tax Appeals.

The petitioner is clutching at straws.

It is noted that in the letter of July 3, 1980, imposing the second assessment of P72,948.87, the
Commissioner made it clear that "the aforesaid amount is considered provisional only based on the
estate tax return filed subject to investigation by this Office for final determination of the correct estate
tax due from the estate. Any amount that may be found due after said investigation will be assessed
and collected later."   It is illogical to suggest that a provisional assessment can supersede an earlier
21

assessment which had clearly become final and executory.

The second contention is no less flimsy. The petitioner cannot be serious when he argues that the first
assessment was invalid because the foreign lawyers who filed the return on which it was based were
not familiar with our tax laws and procedure. Is the petitioner suggesting that they are excused from
compliance therewith because of their ignorance?

If our own lawyers and taxpayers cannot claim a similar preference because they are not allowed to
claim a like ignorance, it stands to reason that foreigners cannot be any less bound by our own laws in
our own country. A more obvious and shallow discrimination than that suggested by the petitioner is
indeed difficult to find.

But the most compelling consideration in this case is the fact that the first assessment is already final
and executory and can no longer be questioned at this late hour. The assessment was made on
February 9, 1978. It was protested on March 7, 1978. The protest was denied on July 7, 1978. As no
further action was taken thereon by the decedent's estate, there is no question that the assessment has
become final and executory.

In fact, the law firm that had lodged the protest appears to have accepted its denial. In his motion with
the probate court, the respondent Commissioner stressed that "in a letter dated January 29, 1980, the
Estate of Warren Taylor Graham thru the aforesaid foreign law firm informed claimant that they have
paid said tax liability thru the Agrava, Velarde, Lucero and Puno, Philippine law firm of 313 Buendia
Avenue Ext., Makati, Metro Manila that initiated the instant ancillary proceedings" although he added
that such payment had not yet been received.  This letter was an acknowledgment by the estate of the
22

validity and finality of the first assessment. Significantly, it has not been denied by the petitioner.

In view of the finality of the first assessment, the petitioner cannot now raise the question of its validity
before this Court any more than he could have done so before the Court of Tax Appeals. What the
estate of the decedent should have done earlier, following the denial of its protest on July 7, 1978, was
to appeal to the Court of Tax Appeals within the reglementary period of 30 days after it received notice
of said denial. It was in such appeal that the petitioner could then have raised the first two issues he
now raises without basis in the present petition.

The question of whether or not the shares of stock left by the decedent should be considered conjugal
property or belonging to him alone is immaterial in these proceedings. So too is the time at which the
assessment of these shares of stock should have been made by the BIR. These questions were not
resolved by the Court of Tax Appeals because it had no jurisdiction to act on the petitioner's appeal
from an assessment that had already been cancelled. The assessment being no longer controversial or
reviewable, there was no justification for the respondent court to rule on the petition except to dismiss it.

If indeed the Commissioner of Internal Revenue committed an error in the computation of the estate
tax, as the petitioner insists, that error can no longer be rectified because the original assessment has
long become final and executory. If that assessment was not challenged on time and in accordance
with the prescribed procedure, that error — for error it was — was committed not by the respondents
but by the decedent's estate itself which the petitioner represents. So how can he now complain.

WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so ordered,

Narvasa (Chairman), Griño-Aquino and Medialdea, JJ., concur.

 
 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:

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:

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.

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

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.

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
the criminal action unless the offended party waives the civil action, reserves the right to institute it
separately or institutes the civil action prior to the criminal action.

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 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 facto under 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
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. Velez 25 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.

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.

LUCAS P. BERSAMIN
Associate Justice

FIRST DIVISION

[G.R. No. 167057 : April 11, 2012]

NERWIN INDUSTRIES CORPORATION, PETITIONER, VS. PNOC-ENERGY

DEVELOPMENT CORPORATION, AND ESTER R. GUERZON, CHAIRMAN, BIDS AND
AWARDS COMMITTEE, RESPONDENTS.

DECISION

BERSAMIN, J.:

Republic Act No. 8975[1] expressly prohibits any court, except the Supreme Court, from
issuing any temporary restraining order (TRO), preliminary injunction, or preliminary
mandatory injunction to restrain, prohibit or compel the Government, or any of its
subdivisions or officials, or any person or entity, whether public or private, acting under
the Government’s direction, from: (a) acquiring, clearing, and developing the right-of-
way, site or location of any National Government project; (b) bidding or awarding of a
contract or project of the National Government; (c) commencing, prosecuting, executing,
implementing, or operating any such contract or project; (d) terminating or rescinding any
such contract or project; and (e) undertaking or authorizing any other lawful activity
necessary for such contract or project. cralaw

Accordingly, a Regional Trial Court (RTC) that ignores the statutory prohibition and issues
a TRO or a writ of preliminary injunction or preliminary mandatory injunction against a
government contract or project acts contrary to law.

Antecedents

The following antecedents are culled from the assailed decision of the Court of Appeals
(CA) promulgated on October 22, 2004,[2] viz:

In 1999, the National Electrification Administration (“NEA”) published an invitation to pre-

qualify and to bid for a contract, otherwise known as IPB No. 80, for the supply and
delivery of about sixty thousand (60,000) pieces of woodpoles and twenty thousand
(20,000) pieces of crossarms needed in the country’s Rural Electrification Project.  The
said contract consisted of four (4) components, namely: PIA, PIB and PIC or woodpoles
and P3 or crossarms, necessary for NEA’s projected allocation for Luzon, Visayas and
Mindanao.  In response to the said invitation, bidders, such as private respondent
[Nerwin], were required to submit their application for eligibility together with their
technical proposals.  At the same time, they were informed that only those who would
pass the standard pre-qualification would be invited to submit their financial bids.

Following a thorough review of the bidders’ qualifications and eligibility, only four (4)
bidders, including private respondent [Nerwin], qualified to participate in the bidding for
the IPB-80 contract.  Thereafter, the qualified bidders submitted their financial bids where
private respondent [Nerwin] emerged as the lowest bidder for all schedules/components
of the contract.  NEA then conducted a pre-award inspection of private respondent’s
[Nerwin’s] manufacturing plants and facilities, including its identified supplier in Malaysia,
to determine its capability to supply and deliver NEA’s requirements.

In the Recommendation of Award for Schedules PIA, PIB, PIC and P3 - IBP No. 80 [for
the] Supply and Delivery of Woodpoles and Crossarms dated October 4, 2000, NEA
administrator Conrado M. Estrella III recommended to NEA’s Board of Directors the
approval of award to private respondent [Nerwin] of all schedules for IBP No. 80 on
account of the following:

a. Nerwin is the lowest complying and responsive bidder;

b. The price difference for the four (4) schedules between the bid of Nerwin Industries
(lowest responsive and complying bidder) and the second lowest bidder in the amount of
$1.47 million for the poles and $0.475 million for the crossarms, is deemed substantial
and extremely advantageous to the government.  The price difference is equivalent to
7,948 pcs. of poles and 20.967 pcs. of crossarms;

c. The price difference for the three (3) schedules between the bids of Nerwin and the Tri-
State Pole and Piling, Inc. approximately in the amount of $2.36 million for the poles and
$0.475 million for the crossarms are equivalent to additional 12.872 pcs. of poles and
20.967 pcs. of crossarms; and

d. The bidder and manufacturer are capable of supplying the woodpoles and specified in
the bid documents and as based on the pre-award inspection conducted.

However, on December 19, 2000, NEA’s Board of Directors passed Resolution No. 32
reducing by 50% the material requirements for IBP No. 80 “given the time limitations for
the delivery of the materials, xxx, and with the loan closing date of October 2001 fast
approaching”.  In turn, it resolved to award the four (4) schedules of IBP No. 80 at a
reduced number to private respondent [Nerwin].  Private respondent [Nerwin] protested
the said 50% reduction, alleging that the same was a ploy to accommodate a losing
bidder.

On the other hand, the losing bidders Tri State and Pacific Synnergy appeared to have
filed a complaint, citing alleged false or falsified documents submitted during the pre-
qualification stage which led to the award of the IBP-80 project to private respondent
[Nerwin].

Thus, finding a way to nullify the result of the previous bidding, NEA officials sought the
opinion of the Government Corporate Counsel who, among others, upheld the eligibility
and qualification of private respondent [Nerwin].  Dissatisfied, the said officials attempted
to seek a revision of the earlier opinion but the Government Corporate Counsel declared
anew that there was no legal impediment to prevent the award of IPB-80 contract to
private respondent [Nerwin]. Notwithstanding, NEA allegedly held negotiations with other
bidders relative to the IPB-80 contract, prompting private respondent [Nerwin] to file a
complaint for specific performance with prayer for the issuance of an injunction, which
injunctive application was granted by Branch 36 of RTC-Manila in Civil Case No.
01102000.

In the interim, PNOC-Energy Development Corporation purporting to be under the

Department of Energy, issued Requisition No. FGJ 30904R1 or an invitation to pre-qualify
and to bid for wooden poles needed for its Samar Rural Electrification Project (“O-ILAW
project”).

Upon learning of the issuance of Requisition No. FGJ 30904R1 for the O-ILAW Project,
Nerwin filed a civil action in the RTC in Manila, docketed as Civil Case No. 03106921
entitled Nerwin Industries Corporation  v. PNOC-Energy Development Corporation and
Ester R. Guerzon, as Chairman, Bids and Awards Committee, alleging that Requisition No.
FGJ 30904R1 was an attempt to subject a portion of the items covered by IPB No. 80 to
another bidding; and praying that a TRO issue to enjoin respondents’ proposed bidding for
the wooden poles.

Respondents sought the dismissal of Civil Case No. 03106921, stating that the complaint
averred no cause of action, violated the rule that government infrastructure projects were
not to be subjected to TROs, contravened the mandatory prohibition against non-forum
shopping, and the corporate president had no authority to sign and file the complaint. [3]

On June 27, 2003, after Nerwin had filed its rejoinder to respondents’ reply, the RTC
granted a TRO in Civil Case No. 03106921.[4]

On July 30, 2003, the RTC issued an order,[5] as follows:

WHEREFORE, for the foregoing considerations, an order is hereby issued by this Court:

1. DENYING the motion to consolidate;

2. DENYING the urgent motion for reconsideration;
3. DISQUALIFYING Attys. Michael A. Medado, Datu Omar S. Sinsuat and
Mariano H. Paps from appearing as counsel for the defendants;
4. DECLARING defendants in default;
5. GRANTING the motion for issuance of writ of preliminary injunction.

Accordingly, let a writ of preliminary injunction issue enjoining the defendant PNOC-EDC
and its Chairman of Bids and Awards Committee Esther R. Guerzon from continuing the
holding of the subject bidding upon the plaintiffs filing of a bond in the amount of
P200,000.00 to answer for any damage or damages which the defendants may suffer
should it be finally adjudged that petitioner is not entitled thereto, until final determination
of the issue in this case by this Court.

This order shall become effective only upon the posting of a bond by the plaintiffs in the
amount of P200,000.00.

Let a copy of this order be immediately served on the defendants and strict compliance
herein is enjoined. Furnish the Office of the Government Corporate Counsel copy of this
order.

SO ORDERED.

Respondents moved for the reconsideration of the order of July 30, 2003, and also to set
aside the order of default and to admit their answer to the complaint.

On January 13, 2004, the RTC denied respondents’ motions for reconsideration, to set
aside order of default, and to admit answer. [6]

Thence, respondents commenced in the Court of Appeals (CA) a special civil action
for certiorari (CA-GR SP No. 83144), alleging that the RTC had thereby committed grave
abuse of discretion amounting to lack or excess of jurisdiction in holding that Nerwin had
been entitled to the issuance of the writ of preliminary injunction despite the express
prohibition from the law and from the Supreme Court; in issuing the TRO in blatant
violation of the Rules of Court and established jurisprudence; in declaring respondents in
default; and in disqualifying respondents’ counsel from representing them. [7]

On October 22, 2004, the CA promulgated its decision, [8] to wit:

WHEREFORE, the petition is GRANTED.  The assailed Orders dated July 30 and December
29, 2003 are hereby ANNULED and SET ASIDE.  Accordingly, Civil Case No. 03106921,
private respondent’s complaint for issuance of temporary restraining order/writ of
preliminary injunction before Branch 37 of the Regional Trial Court of Manila, is
DISMISSED for lack of merit.

SO ORDERED.

Nerwin filed a motion for reconsideration, but the CA denied the motion on February 9,
2005.[9]

Issues

Hence, Nerwin appeals, raising the following issues:

 I. Whether or not the CA erred in dismissing the case on the basis of Rep. Act
8975 prohibiting the issuance of temporary restraining orders and
preliminary injunctions, except if issued by the Supreme Court, on
government projects.

II. Whether or not the CA erred in ordering the dismissal of the entire case on
the basis of Rep. Act 8975 which prohibits the issuance only of a preliminary
injunction but not injunction as a final remedy.

III. Whether or not the CA erred in dismissing the case considering that it is also
one for damages.

Ruling

The petition fails.

In its decision of October 22, 2004, the CA explained why it annulled and set aside the
assailed orders of the RTC issued on July 20, 2003 and December 29, 2003, and why it
altogether dismissed Civil Case No. 03106921, as follows:

It is beyond dispute that the crux of the instant case is the propriety of respondent
Judge’s issuance of a preliminary injunction, or the earlier TRO, for that matter.

Respondent Judge gravely abused his discretion in entertaining an application for

TRO/preliminary injunction, and worse, in issuing a preliminary injunction through the
assailed order enjoining petitioners’ sought bidding for its O-ILAW Project.  The same is a
palpable violation of RA 8975 which was approved on November 7, 2000, thus, already
existing at the time respondent Judge issued the assailed Orders dated July 20 and
December 29, 2003.

Section 3 of RA 8975 states in no uncertain terms, thus:

Prohibition on the Issuance of temporary Restraining Order, Preliminary Injunctions and

Preliminary Mandatory Injunctions. – No court, except the Supreme Court, shall issue any
temporary restraining order, preliminary injunction or preliminary mandatory injunction
against the government, or any of its subdivisions, officials, or any person or entity,
whether public or private, acting under the government’s direction, to restrain, prohibit or
compel the following acts:

xxx

(b) Bidding or awarding of contract/project of the national government as

defined under Section 2 hereof;

xxx

This prohibition shall apply in all cases, disputes or controversies instituted by a private
party, including but not limited to cases filed by bidders or those claiming to have rights
through such bidders involving such contract/project.  This prohibition shall not apply
when the matter is of extreme urgency involving a constitutional issue, such that unless a
temporary restraining order is issued, grave injustice and irreparable injury will arise. xxx

The said proscription is not entirely new. RA 8975 merely supersedes PD 1818 which
earlier underscored the prohibition to courts from issuing restraining orders or preliminary
injunctions in cases involving infrastructure or National Resources Development projects
of, and public utilities operated by, the government. This law was, in fact, earlier upheld to
have such a mandatory nature by the Supreme Court in an administrative case against a
Judge.

Moreover, to bolster the significance of the said prohibition, the Supreme Court had the
same embodied in its Administrative Circular No. 11-2000 which reiterates the ban on
issuance of TRO or writs of Preliminary Prohibitory or Mandatory Injunction in cases
involving Government Infrastructure Projects.  Pertinent is the ruling in National Housing
Authority vs. Allarde “As regards the definition of infrastructure projects, the Court
stressed in Republic of the Phil. vs. Salvador Silverio and Big Bertha Construction:  The
term ‘infrastructure projects’ means ‘construction, improvement and rehabilitation of
roads, and bridges, railways, airports, seaports, communication facilities, irrigation, flood
control and drainage, water supply and sewerage systems, shore protection, power
facilities, national buildings, school buildings, hospital buildings and other related
construction projects that form part of the government capital investment.”

Thus, there is nothing from the law or jurisprudence, or even from the facts of the case,
that would justify respondent Judge’s blatant disregard of a “simple, comprehensible and
unequivocal mandate (of PD 1818) prohibiting the issuance of injunctive writs relative to
government infrastructure projects.”  Respondent Judge did not even endeavor, although
expectedly, to show that the instant case falls under the single exception where the said
proscription may not apply, i.e., when the matter is of extreme urgency involving a
constitutional issue, such that unless a temporary restraining order is issued, grave
injustice and irreparable injury will arise.

Respondent Judge could not have legally declared petitioner in default because, in the first
place, he should not have given due course to private respondent’s complaint for
injunction.  Indubitably, the assailed orders were issued with grave abuse of discretion
amounting to lack or excess of jurisdiction.

Perforce, this Court no longer sees the need to resolve the other grounds proffered by
petitioners.[10]

The CA’s decision was absolutely correct. The RTC gravely abused its discretion, firstly,
when it entertained the complaint of Nerwin against respondents notwithstanding that
Nerwin was thereby contravening the express provisions of Section 3 and Section 4 of
Republic Act No. 8975 for its seeking to enjoin the bidding out by respondents of the O-
ILAW Project; and, secondly, when it issued the TRO and the writ of preliminary
prohibitory injunction.

Section 3 and Section 4 of Republic Act No. 8975 provide:

Section 3. Prohibition on the Issuance of Temporary Restraining Orders, Preliminary

Injunctions and Preliminary Mandatory Injunctions.  – No court, except the Supreme
Court, shall issue any temporary restraining order, preliminary injunction or preliminary
mandatory injunction against the government, or any of its subdivisions, officials or any
person or entity, whether public or private, acting under the government’s direction, to
restrain, prohibit or compel the following acts:

(a) Acquisition, clearance and development of the right-of-way and/or site or location of
any national government project;

(b) Bidding or awarding of contract/project of the national government as

defined under Section 2 hereof;

(c) Commencement, prosecution, execution, implementation, operation of any such

contract or project;

(d) Termination or rescission of any such contract/project; and

(e) The undertaking or authorization of any other lawful activity necessary for such
contract/project.

This prohibition shall apply in all cases, disputes or controversies instituted by a private
party, including but not limited to cases filed by bidders or those claiming to have rights
through such bidders involving such contract/project. This prohibition shall not apply when
the matter is of extreme urgency involving a constitutional issue, such that unless a
temporary restraining order is issued, grave injustice and irreparable injury will arise. The
applicant shall file a bond, in an amount to be fixed by the court, which bond shall accrue
in favor of the government if the court should finally decide that the applicant was not
entitled to the relief sought.

If after due hearing the court finds that the award of the contract is null and void, the
court may, if appropriate under the circumstances, award the contract to the qualified and
winning bidder or order a rebidding of the same, without prejudice to any liability that the
guilty party may incur under existing laws.

Section 4. Nullity of Writs and Orders. - Any temporary restraining order, preliminary
injunction or preliminary mandatory injunction issued in violation of Section 3
hereof is void and of no force and effect.

The text and tenor of the provisions being clear and unambiguous, nothing was left for the
RTC to do except to enforce them and to exact upon Nerwin obedience to them. The RTC
could not have been unaware of the prohibition under Republic Act No. 8975 considering
that the Court had itself instructed all judges and justices of the lower courts, through
Administrative Circular No. 11-2000, to comply with and respect the prohibition against
the issuance of TROs or writs of preliminary prohibitory or mandatory injunction involving
contracts and projects of the Government.

It is of great relevance to mention at this juncture that Judge Vicente A. Hidalgo, the
Presiding Judge of Branch 37 of the RTC, the branch to which Civil Case No. 03106921 had
been raffled, was in fact already found administratively liable for gross misconduct and
gross ignorance of the law as the result of his issuance of the assailed TRO and writ of
preliminary prohibitory injunction. The Court could only fine him in the amount of
P40,000.00 last August 6, 2008 in view of his intervening retirement from the service.
That sanction was meted on him in A.M. No. RTJ-08-2133 entitled Sinsuat  v. Hidalgo,
[11]
 where this Court stated:

The Court finds that, indeed, respondent is liable for gross misconduct. As the CA
explained in its above-stated Decision in the petition for certiorari, respondent failed to
heed the mandatory ban imposed by P.D. No. 1818 and R.A. No. 8975 against a
government infrastructure project, which the rural electrification project certainly was. He
thereby likewise obstinately disregarded this Court’s various circulars enjoining courts
from issuing TROs and injunctions against government infrastructure projects in line with
the proscription under R.A. No. 8975. Apropos are Gov. Garcia v. Hon. Burgos and
National Housing Authority v. Hon. Allarde wherein this Court stressed that P.D. No. 1818
expressly deprives courts of jurisdiction to issue injunctive writs against the
implementation or execution of a government infrastructure project.

Reiterating the prohibitory mandate of P.D. No. 1818, the Court in Atty. Caguioa v. Judge
Laviña faulted a judge for grave misconduct for issuing a TRO against a government
infrastructure project thus:

xxx It appears that respondent is either feigning a misunderstanding of the law or openly
manifesting a contumacious indifference thereto. In any case, his disregard of the clear
mandate of PD 1818, as well as of the Supreme Court Circulars enjoining strict compliance
therewith, constitutes grave misconduct and conduct prejudicial to the proper
administration of justice. His claim that the said statute is inapplicable to his January 21,
1997 Order extending the dubious TRO is but a contrived subterfuge to evade
administrative liability.

In resolving matters in litigation, judges should endeavor assiduously to

ascertain the facts and the applicable laws. Moreover, they should exhibit more
than just a cursory acquaintance with statutes and procedural rules. Also, they
are expected to keep abreast of and be conversant with the rules and the
circulars which the Supreme Court has adopted and which affect the disposition
of cases before them.

Although judges have in their favor the presumption of regularity and good faith in the
performance of their judicial functions, a blatant disregard of the clear and
unmistakable terms of the law obviates this presumption and renders them
susceptible to administrative sanctions. (Emphasis and underscoring supplied)

The pronouncements in Caguioa apply as well to respondent.

The questioned acts of respondent also constitute gross ignorance of the law for being
patently in disregard of simple, elementary and well-known rules which judges are
expected to know and apply properly.

IN FINE, respondent is guilty of gross misconduct and gross ignorance of the law,

which are serious charges under Section 8 of Rule 140 of the Rules of Court. He having
retired from the service, a fine in the amount of P40,000 is imposed upon him, the
maximum amount fixed under Section 11 of Rule 140 as an alternative sanction to
dismissal or suspension.[12]
Even as the foregoing outcome has rendered any further treatment and discussion of
Nerwin’s other submissions superfluous and unnecessary, the Court notes that the RTC did
not properly appreciate the real nature and true purpose of the injunctive remedy. This
failing of the RTC presses the Court to use this decision to reiterate the norms and
parameters long standing jurisprudence has set to control the issuance of TROs and writs
of injunction, and to now insist on conformity to them by all litigants and lower courts.
Only thereby may the grave misconduct committed in Civil Case No. 03106921 be
avoided.

A preliminary injunction is an order granted at any stage of an action or proceeding prior

to the judgment or final order, requiring a party or a court, agency or person, to refrain
from a particular act or acts.[13] It is an ancillary or preventive remedy resorted to by a
litigant to protect or preserve his rights or interests during the pendency of the case. As
such, it is issued only when it is established that:

(a) The applicant is entitled to the relief demanded, and the whole or part of such relief consists in
restraining the commission or continuance of the act or acts complained of, or in requiring the
performance of an act or acts, either for a limited period or perpetually; or
(b) The commission, continuance or non-performance of the act or acts complained of during the
litigation would probably work injustice to the applicant; or
(c) A party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring
or suffering to be done, some act or acts probably in violation of the rights of the applicant
respecting the subject of the action or proceeding, and tending to render the judgment
ineffectual.[14]

The existence of a right to be protected by the injunctive relief is indispensable. In City

Government of Butuan v. Consolidated Broadcasting System (CBS), Inc.,[15] the Court
elaborated on this requirement, viz:

As with all equitable remedies, injunction must be issued only at the instance of a party
who possesses sufficient interest in or title to the right or the property sought to be
protected. It is proper only when the applicant appears to be entitled to the relief
demanded in the complaint, which must aver the existence of the right and the violation of
the right, or whose averments must in the minimum constitute a prima facie showing of a
right to the final relief sought. Accordingly, the conditions for the issuance of the
injunctive writ are: (a) that the right to be protected exists prima facie; (b) that the act
sought to be enjoined is violative of that right; and (c) that there is an urgent and
paramount necessity for the writ to prevent serious damage. An injunction will not
issue to protect a right not in esse, or a right which is merely contingent and may
never arise; or to restrain an act which does not give rise to a cause of action; or
to prevent the perpetration of an act prohibited by statute. Indeed, a right, to be
protected by injunction, means a right clearly founded on or granted by law or is
enforceable as a matter of law.[16]

Conclusive proof of the existence of the right to be protected is not demanded, however,
for, as the Court has held in Saulog v. Court of Appeals,[17] it is enough that:

xxx for the court to act, there must be an existing basis of facts affording a present
right which is directly threatened by an act sought to be enjoined. And while a
clear showing of the right claimed is necessary, its existence need not be
conclusively established. In fact, the evidence to be submitted to justify preliminary
injunction at the hearing thereon need not be conclusive or complete but need only be a
“sampling” intended merely to give the court an idea of the justification for the preliminary
injunction pending the decision of the case on the merits. This should really be so since
our concern here involves only the propriety of the preliminary injunction and
not the merits of the case still pending with the trial court.

Thus, to be entitled to the writ of preliminary injunction, the private respondent needs
only to show that it has the ostensible right to the final relief prayed for in its
complaint xxx.[18]

In this regard, the Rules of Court grants a broad latitude to the trial courts considering
that conflicting claims in an application for a provisional writ more often than not involve
and require a factual determination that is not the function of the appellate courts.
[19]
 Nonetheless, the exercise of such discretion must be sound, that is, the issuance of the
writ, though discretionary, should be upon the grounds and in the manner provided by
law.[20] When that is done, the exercise of sound discretion by the issuing court in
injunctive matters must not be interfered with except when there is manifest abuse. [21]

Moreover, judges dealing with applications for the injunctive relief ought to be wary of
improvidently or unwarrantedly issuing TROs or writs of injunction that tend to dispose of
the merits without or before trial. Granting an application for the relief in disregard of that
tendency is judicially impermissible,[22] for it is never the function of a TRO or preliminary
injunction to determine the merits of a case,[23] or to decide controverted facts.[24] It is but
a preventive remedy whose only mission is to prevent threatened wrong, [25] further injury,
[26]
 and irreparable harm[27] or injustice[28] until the rights of the parties can be
settled. Judges should thus look at such relief only as a means to protect the ability of
their courts to render a meaningful decision. [29] Foremost in their minds should be to guard
against a change of circumstances that will hamper or prevent the granting of proper
reliefs after a trial on the merits.[30] It is well worth remembering that the writ of
preliminary injunction should issue only to prevent the threatened continuous and
irremediable injury to the applicant before the claim can be justly and thoroughly studied
and adjudicated.[31]cralaw

WHEREFORE, the Court AFFIRMS the decision of the Court of Appeals;

and ORDERS petitioner to pay the costs of suit.

The Court Administrator shall disseminate this decision to the lower courts for their
guidance.

SO  ORDERED.

Corona, C.J., (Chairperson), Leonardo-De Castro,  *Brion,  and Villarama, Jr., JJ.,

concur.
 FIRST DIVISION

G.R. No. 137873       April 20, 2001

D. M. CONSUNJI, INC., petitioner,
vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.

KAPUNAN, J.:

At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M. Consunji, Inc., fell
14 floors from the Renaissance Tower, Pasig City to his death.

PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a report dated
November 25, 1990, stating that:

x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila where he
was pronounced dead on arrival (DOA) by the attending physician, Dr. Errol de Yzo[,] at around
2:15 p.m. of the same date.

Investigation disclosed that at the given time, date and place, while victim Jose A. Juego
together with Jessie Jaluag and Delso Destajo [were] performing their work as carpenter[s] at
the elevator core of the 14th floor of the Tower D, Renaissance Tower Building on board a
[p]latform made of channel beam (steel) measuring 4.8 meters by 2 meters wide with pinulid
plywood flooring and cable wires attached to its four corners and hooked at the 5 ton chain
block, when suddenly, the bolt or pin which was merely inserted to connect the chain block with
the [p]latform, got loose xxx causing the whole [p]latform assembly and the victim to fall down to
the basement of the elevator core, Tower D of the building under construction thereby crushing
the victim of death, save his two (2) companions who luckily jumped out for safety.

It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was then on
board and performing work, fell. And the falling of the [p]latform was due to the removal or
getting loose of the pin which was merely inserted to the connecting points of the chain block
and [p]latform but without a safety lock.1

On May 9, 1991, Jose Juego’s widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a
complaint for damages against the deceased’s employer, D.M. Consunji, Inc. The employer raised,
among other defenses, the widow’s prior availment of the benefits from the State Insurance Fund.

After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive portion of the
RTC decision reads:

WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as follows:

1. P50,000.00 for the death of Jose A. Juego.

2. P10,000.00 as actual and compensatory damages.

3. P464,000.00 for the loss of Jose A. Juego’s earning capacity.

 4. P100,000.00 as moral damages.

5. P20,000.00 as attorney’s fees, plus the costs of suit.

SO ORDERED. 2

On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto.

D. M. Consunji now seeks the reversal of the CA decision on the following grounds:

 THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE REPORT WAS
ADMISSIBLE EVIDENCE OF THE ALLEGED NEGLIGENCE OF PETITIONER.

 THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES IPSA
LOQUITOR [sic] IS APPLICABLE TO PROVE NEGLIGENCE ON THE PART OF
PETITIONER.

 THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS PRESUMED

NEGLIGENT UNDER ARTICLE 2180 OF THE CIVIL CODE, AND

 THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT

PRECLUDED FROM RECOVERING DAMAGES UNDER THE CIVIL CODE. 3

Petitioner maintains that the police report reproduced above is hearsay and, therefore, inadmissible.
The CA ruled otherwise. It held that said report, being an entry in official records, is an exception to the
hearsay rule.

The Rules of Court provide that a witness can testify only to those facts which he knows of his personal
knowledge, that is, which are derived from his perception. A witness, therefore, may not testify as what
4 

he merely learned from others either because he was told or read or heard the same. Such testimony is
considered hearsay and may not be received as proof of the truth of what he has learned. 5 This is
known as the hearsay rule.

Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as
evidence applies to written, as well as oral statements. 6

The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error
and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best
brought to light and exposed by the test of cross-examiantion. 7 The hearsay rule, therefore, excludes
evidence that cannot be tested by cross-examination. 8

The Rules of Court allow several exceptions to the rule, 9 among which are entries in official records.
Section 44, Rule 130 provides:

Entries in official records made in the performance of his duty made in the performance of his
duty by a public officer of the Philippines, or by a person in the performance of a duty specially
enjoined by law are prima facie evidence of the facts therein stated.

In Africa, et al. vs. Caltex (Phil.), Inc., et al., this Court, citing the work of Chief Justice Moran,
10 

enumerated the requisites for admissibility under the above rule:

(a) that the entry was made by a public officer or by another person specially enjoined by law to
do so;

(b) that it was made by the public officer in the performance of his duties, or by such other
person in the performance of a duty specially enjoined by law; and

(c) that the public officer or other person had sufficient knowledge of the facts by him stated,
which must have been acquired by him personally or through official information.

The CA held that the police report meets all these requisites. Petitioner contends that the last requisite
is not present.

The Court notes that PO3 Villanueva, who signed the report in question, also testified before the trial
court. In Rodriguez vs. Court of Appeals, which involved a Fire Investigation Report, the officer who
11 

signed the fire report also testified before the trial court. This Court held that the report was inadmissible
for the purpose of proving the truth of the statements contained in the report but admissible insofar as it
constitutes part of the testimony of the officer who executed the report.
 x x x. Since Major Enriquez himself took the witness stand and was available for cross-
examination, the portions of the report which were of his personal knowledge or which consisted
of his perceptions and conclusions were not hearsay. The rest of the report, such as the
summary of the statements of the parties based on their sworn statements (which were
annexed to the Report) as well as the latter, having been included in the first purpose of the
offer [as part of the testimony of Major Enriquez], may then be considered as independently
relevant statements which were gathered in the course of the investigation and may thus be
admitted as such, but not necessarily to prove the truth thereof. It has been said that:

"Where regardless of the truth or falsity of a statement, the fact that it has been made is
relevant, the hearsay rule does not apply, but the statement may be shown. Evidence
as to the making of such statement is not secondary but primary, for the statement itself
may constitute a fact in issue, or be circumstantially relevant as to the existence of such
a fact."

When Major Enriquez took the witness stand, testified for petitioners on his Report and made
himself available for cross-examination by the adverse party, the Report, insofar as it proved
that certain utterances were made (but not their truth), was effectively removed from the ambit
of the aforementioned Section 44 of Rule 130. Properly understood, this section does away with
the testimony in open court of the officer who made the official record, considers the matter as
an exception to the hearsay rule and makes the entries in said official record admissible in
evidence as prima facie evidence of the facts therein stated. The underlying reasons for this
exceptionary rule are necessity and trustworthiness, as explained in Antillon v. Barcelon.

The litigation is unlimited in which testimony by officials is daily needed; the occasions in
which the officials would be summoned from his ordinary duties to declare as a witness
are numberless. The public officers are few in whose daily work something is not done
in which testimony is not needed from official sources. Were there no exception for
official statements, hosts of officials would be found devoting the greater part of their
time to attending as witnesses in court or delivering deposition before an officer. The
work of administration of government and the interest of the public having business with
officials would alike suffer in consequence. For these reasons, and for many others, a
certain verity is accorded such documents, which is not extended to private documents.
(3 Wigmore on Evidence, Sec. 1631).

The law reposes a particular confidence in public officers that it presumes they will
discharge their several trusts with accuracy and fidelity; and, therefore, whatever acts
they do in discharge of their duty may be given in evidence and shall be taken to be true
under such a degree of caution as to the nature and circumstances of each case may
appear to require.

It would have been an entirely different matter if Major Enriquez was not presented to testify on
his report. In that case the applicability of Section 44 of Rule 143 would have been ripe for
determination, and this Court would have agreed with the Court of Appeals that said report was
inadmissible since the aforementioned third requisite was not satisfied. The statements given by
the sources of information of Major Enriquez failed to qualify as "official information," there
being no showing that, at the very least, they were under a duty to give the statements for
record.

Similarly, the police report in this case is inadmissible for the purpose of proving the truth of the
statements contained therein but is admissible insofar as it constitutes part of the testimony of PO3
Villanueva.

In any case, the Court holds that portions of PO3 Villanueva’s testimony which were of his personal
knowledge suffice to prove that Jose Juego indeed died as a result of the elevator crash. PO3
Villanueva had seen Juego’s remains at the morgue, making the latter’s death beyond dispute. PO3
12 

Villanueva also conducted an ocular inspection of the premises of the building the day after the
incident and saw the platform for himself. He observed that the platform was crushed and that it was
13  14  15 

totally damaged. PO3 Villanueva also required Garcia and Fabro to bring the chain block to the police
16 

headquarters. Upon inspection, he noticed that the chain was detached from the lifting machine, without
any pin or bolt.17

What petitioner takes particular exception to is PO3 Villanueva’s testimony that the cause of the fall of
the platform was the loosening of the bolt from the chain block. It is claimed that such portion of the
testimony is mere opinion. Subject to certain exceptions, the opinion of a witness is generally not
18 

admissible.19

Petitioner’s contention, however, loses relevance in the face of the application of res ipsa loquitur by the
CA. The effect of the doctrine is to warrant a presumption or inference that the mere fall of the elevator
was a result of the person having charge of the instrumentality was negligent. As a rule of evidence, the
doctrine of res ipsa loquitur is peculiar to the law of negligence which recognizes that prima
facie negligence may be established without direct proof and furnishes a substitute for specific proof of
negligence.20

The concept of res ipsa loquitur has been explained in this wise:

While negligence is not ordinarily inferred or presumed, and while the mere happening of an
accident or injury will not generally give rise to an inference or presumption that it was due to
negligence on defendant’s part, under the doctrine of res ipsa loquitur, which means, literally,
the thing or transaction speaks for itself, or in one jurisdiction, that the thing or instrumentality
speaks for itself, the facts or circumstances accompanying an injury may be such as to raise a
presumption, or at least permit an inference of negligence on the part of the defendant, or some
other person who is charged with negligence.

x x x where it is shown that the thing or instrumentality which caused the injury complained of
was under the control or management of the defendant, and that the occurrence resulting in the
injury was such as in the ordinary course of things would not happen if those who had its control
or management used proper care, there is sufficient evidence, or, as sometimes stated,
reasonable evidence, in the absence of explanation by the defendant, that the injury arose from
or was caused by the defendant’s want of care.21

One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is absent or
not available.22

The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of
the instrumentality which causes the injury either knows the cause of the accident or has the
best opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore is
compelled to allege negligence in general terms and to rely upon the proof of the happening of
the accident in order to establish negligence. The inference which the doctrine permits is
grounded upon the fact that the chief evidence of the true cause, whether culpable or innocent,
is practically accessible to the defendant but inaccessible to the injured person.

It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff,
without knowledge of the cause, reaches over to defendant who knows or should know the
cause, for any explanation of care exercised by the defendant in respect of the matter of which
the plaintiff complains. The res ipsa loquitur doctrine, another court has said, is a rule of
necessity, in that it proceeds on the theory that under the peculiar circumstances in which the
doctrine is applicable, it is within the power of the defendant to show that there was no
negligence on his part, and direct proof of defendant’s negligence is beyond plaintiff’s power.
Accordingly, some court add to the three prerequisites for the application of the res ipsa loquitur
doctrine the further requirement that for the res ipsa loquitur doctrine to apply, it must appear
that the injured party had no knowledge or means of knowledge as to the cause of the accident,
or that the party to be charged with negligence has superior knowledge or opportunity for
explanation of the accident.23

The CA held that all the requisites of res ipsa loquitur are present in the case at bar:

There is no dispute that appellee’s husband fell down from the 14 th floor of a building to the
basement while he was working with appellant’s construction project, resulting to his death. The
construction site is within the exclusive control and management of appellant. It has a safety
engineer, a project superintendent, a carpenter leadman and others who are in complete control
of the situation therein. The circumstances of any accident that would occur therein are
peculiarly within the knowledge of the appellant or its employees. On the other hand, the
appellee is not in a position to know what caused the accident. Res ipsa loquitur is a rule of
necessity and it applies where evidence is absent or not readily available, provided the following
requisites are present: (1) the accident was of a kind which does not ordinarily occur unless
someone is negligent; (2) the instrumentality or agency which caused the injury was under the
exclusive control of the person charged with negligence; and (3) the injury suffered must not
have been due to any voluntary action or contribution on the part of the person injured. x x x.

No worker is going to fall from the 14th floor of a building to the basement while performing work
in a construction site unless someone is negligent[;] thus, the first requisite for the application of
the rule of res ipsa loquitur is present. As explained earlier, the construction site with all its
paraphernalia and human resources that likely caused the injury is under the exclusive control
and management of appellant[;] thus[,] the second requisite is also present. No contributory
negligence was attributed to the appellee’s deceased husband[;] thus[,] the last requisite is also
present. All the requisites for the application of the rule of res ipsa loquitur are present, thus a
reasonable presumption or inference of appellant’s negligence arises. x x x. 24
Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but
argues that the presumption or inference that it was negligent did not arise since it "proved that it
exercised due care to avoid the accident which befell respondent’s husband."

Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the
defendant’s negligence is presumed or inferred when the plaintiff establishes the requisites for the
25 

application of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the elements, the
burden then shifts to defendant to explain. The presumption or inference may be rebutted or overcome
26 

by other evidence and, under appropriate circumstances disputable presumption, such as that of due
care or innocence, may outweigh the inference. It is not for the defendant to explain or prove its
27 

defense to prevent the presumption or inference from arising. Evidence by the defendant of say, due
care, comes into play only after the circumstances for the application of the doctrine has been
established. 1âwphi1.nêt

In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed before the
police investigator as evidence of its due care. According to Fabro’s sworn statement, the company
enacted rules and regulations for the safety and security of its workers. Moreover, the leadman and
the bodegero inspect the chain block before allowing its use.

It is ironic that petitioner relies on Fabro’s sworn statement as proof of its due care but, in arguing that
private respondent failed to prove negligence on the part of petitioner’s employees, also assails the
same statement for being hearsay.

Petitioner is correct. Fabro’s sworn statement is hearsay and inadmissible. Affidavits are inadmissible
as evidence under the hearsay rule, unless the affiant is placed on the witness stand to testify
thereon. The inadmissibility of this sort of evidence is based not only on the lack of opportunity on the
28 

part of the adverse party to cross-examine the affiant, but also on the commonly known fact that,
generally, an affidavit is not prepared by the affiant himself but by another who uses his own language
in writing the affiant’s statements which may either be omitted or misunderstood by the one writing
them. Petitioner, therefore, cannot use said statement as proof of its due care any more than private
29 

respondent can use it to prove the cause of her husband’s death. Regrettably, petitioner does not cite
any other evidence to rebut the inference or presumption of negligence arising from the application
of res ipsa loquitur, or to establish any defense relating to the incident.

Next, petitioner argues that private respondent had previously availed of the death benefits provided
under the Labor Code and is, therefore, precluded from claiming from the deceased’s employer
damages under the Civil Code.

Article 173 of the Labor Code states:

Article 173. Extent of liability. – Unless otherwise provided, the liability of the State Insurance
Fund under this Title shall be exclusive and in place of all other liabilities of the employer to the
employee, his dependents or anyone otherwise entitled to receive damages on behalf of the
employee or his dependents. The payment of compensation under this Title shall not bar the
recovery of benefits as provided for in Section 699 of the Revised Administrative Code,
Republic Act Numbered Eleven hundred sixty-one, as amended, Republic Act Numbered Six
hundred ten, as amended, Republic Act Numbered Forty-eight hundred sixty-four as amended,
and other laws whose benefits are administered by the System or by other agencies of the
government.

The precursor of Article 173 of the Labor Code, Section 5 of the Workmen’s Compensation Act,
provided that:

Section 5. Exclusive right to compensation. – The rights and remedies granted by this Act to an
employee by reason of a personal injury entitling him to compensation shall exclude all other
rights and remedies accruing to the employee, his personal representatives, dependents or
nearest of kin against the employer under the Civil Code and other laws because of said injury x
x x.

Whether Section 5 of the Workmen’s Compensation Act allowed recovery under said Act as well as
under the Civil Code used to be the subject of conflicting decisions. The Court finally settled the matter
in Floresca vs.Philex Mining Corporation, which involved a cave-in resulting in the death of the
30 

employees of the Philex Mining Corporation. Alleging that the mining corporation, in violation of
government rules and regulations, failed to take the required precautions for the protection of the
employees, the heirs of the deceased employees filed a complaint against Philex Mining in the Court of
First Instance (CFI). Upon motion of Philex Mining, the CFI dismissed the complaint for lack of
jurisdiction. The heirs sought relief from this Court.
Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En
Banc, following the rule in Pacaña vs. Cebu Autobus Company, held in the affirmative.
31 

WE now come to the query as to whether or not the injured employee or his heirs in case of
death have a right of selection or choice of action between availing themselves of the worker’s
right under the Workmen’s Compensation Act and suing in the regular courts under the Civil
Code for higher damages (actual, moral and exemplary) from the employers by virtue of the
negligence or fault of the employers or whether they may avail themselves cumulatively of both
actions, i.e., collect the limited compensation under the Workmen’s Compensation Act and sue
in addition for damages in the regular courts.

In disposing of a similar issue, this Court in Pacaña vs. Cebu Autobus Company, 32 SCRA 442,
ruled that an injured worker has a choice of either to recover from the employer the fixed
amounts set by the Workmen’s Compensation Act or to prosecute an ordinary civil action
against the tortfeasor for higher damages but he cannot pursue both courses of action
simultaneously. [Underscoring supplied.]

Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit under the
Civil Code despite having availed of the benefits provided under the Workmen’s Compensation Act. The
Court reasoned:

With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated May
14, 1968 before the court a quo, that the heirs of the deceased employees, namely Emerito
Obra, Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino submitted notices and claims
for compensation to the Regional Office No. 1 of the then Department of Labor and all of them
have been paid in full as of August 25, 1967, except Saturnino Martinez whose heirs decided
that they be paid in installments x x x. Such allegation was admitted by herein petitioners in their
opposition to the motion to dismiss dated may 27, 1968 x x x in the lower court, but they set up
the defense that the claims were filed under the Workmen’s Compensation Act before they
learned of the official report of the committee created to investigate the accident which
established the criminal negligence and violation of law by Philex, and which report was
forwarded by the Director of Mines to then Executive Secretary Rafael Salas in a letter dated
October 19, 1967 only x x x.

WE hold that although the other petitioners had received the benefits under the Workmen’s
Compensation Act, such my not preclude them from bringing an action before the regular court
because they became cognizant of the fact that Philex has been remiss in its contractual
obligations with the deceased miners only after receiving compensation under the Act. Had
petitioners been aware of said violation of government rules and regulations by Philex, and of its
negligence, they would not have sought redress under the Workmen’s Compensation
Commission which awarded a lesser amount for compensation. The choice of the first remedy
was based on ignorance or a mistake of fact, which nullifies the choice as it was not an
intelligent choice. The case should therefore be remanded to the lower court for further
proceedings. However, should the petitioners be successful in their bid before the lower court,
the payments made under the Workmen’s Compensation Act should be deducted from the
damages that may be decreed in their favor. [Underscoring supplied.]

The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael Maritime
Corporation vs. Avelino, Vda. De Severo vs. Feliciano-Go, and Marcopper Mining Corp. vs.
32  33 

Abeleda. In the last case, the Court again recognized that a claimant who had been paid under the Act
34 

could still sue under the Civil Code. The Court said:

In the Robles case, it was held that claims for damages sustained by workers in the course of
their employment could be filed only under the Workmen’s Compensation Law, to the exclusion
of all further claims under other laws. In Floresca, this doctrine was abrogated in favor of the
new rule that the claimants may invoke either the Workmen’s Compensation Act or the
provisions of the Civil Code, subject to the consequence that the choice of one remedy will
exclude the other and that the acceptance of compensation under the remedy chosen will
preclude a claim for additional benefits under the other remedy. The exception is where a
claimant who has already been paid under the Workmen’s Compensation Act may still sue for
damages under the Civil Code on the basis of supervening facts or developments occurring
after he opted for the first remedy. (Underscoring supplied.)

Here, the CA held that private respondent’s case came under the exception because private
respondent was unaware of petitioner’s negligence when she filed her claim for death benefits from the
State Insurance Fund. Private respondent filed the civil complaint for damages after she received a
copy of the police investigation report and the Prosecutor’s Memorandum dismissing the criminal
complaint against petitioner’s personnel. While stating that there was no negligence attributable to the
respondents in the complaint, the prosecutor nevertheless noted in the Memorandum that, "if at all," the
"case is civil in nature." The CA thus applied the exception in Floresca:
 x x x We do not agree that appellee has knowledge of the alleged negligence of appellant as
early as November 25, 1990, the date of the police investigator’s report. The appellee merely
executed her sworn statement before the police investigator concerning her personal
circumstances, her relation to the victim, and her knowledge of the accident. She did not file the
complaint for "Simple Negligence Resulting to Homicide" against appellant’s employees. It was
the investigator who recommended the filing of said case and his supervisor referred the same
to the prosecutor’s office. This is a standard operating procedure for police investigators which
appellee may not have even known. This may explain why no complainant is mentioned in the
preliminary statement of the public prosecutor in her memorandum dated February 6, 1991, to
wit: "Respondent Ferdinand Fabro x x x are being charged by complainant of "Simple
Negligence Resulting to Homicide." It is also possible that the appellee did not have a chance to
appear before the public prosecutor as can be inferred from the following statement in said
memorandum: "Respondents who were notified pursuant to Law waived their rights to present
controverting evidence," thus there was no reason for the public prosecutor to summon the
appellee. Hence, notice of appellant’s negligence cannot be imputed on appellee before she
applied for death benefits under ECC or before she received the first payment therefrom. Her
using the police investigation report to support her complaint filed on May 9, 1991 may just be
an afterthought after receiving a copy of the February 6, 1991 Memorandum of the Prosecutor’s
Office dismissing the criminal complaint for insufficiency of evidence, stating therein that: "The
death of the victim is not attributable to any negligence on the part of the respondents. If at all
and as shown by the records this case is civil in nature." (Underscoring supplied.) Considering
the foregoing, We are more inclined to believe appellee’s allegation that she learned about
appellant’s negligence only after she applied for and received the benefits under ECC. This is a
mistake of fact that will make this case fall under the exception held in the Floresca ruling.35

The CA further held that not only was private respondent ignorant of the facts, but of her rights as well:

x x x. Appellee [Maria Juego] testified that she has reached only elementary school for her
educational attainment; that she did not know what damages could be recovered from the death
of her husband; and that she did not know that she may also recover more from the Civil
Code than from the ECC. x x x.36

Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in her
complaint that her application and receipt of benefits from the ECC were attended by ignorance or
mistake of fact. Not being an issue submitted during the trial, the trial court had no authority to hear or
adjudicate that issue."

Petitioner also claims that private respondent could not have been ignorant of the facts because as
early as November 28, 1990, private respondent was the complainant in a criminal complaint for
"Simple Negligence Resulting to Homicide" against petitioner’s employees. On February 6, 1991, two
months before the filing of the action in the lower court, Prosecutor Lorna Lee issued a resolution
finding that, although there was insufficient evidence against petitioner’s employees, the case was "civil
in nature." These purportedly show that prior to her receipt of death benefits from the ECC on January
2, 1991 and every month thereafter, private respondent also knew of the two choices of remedies
available to her and yet she chose to claim and receive the benefits from the ECC.

When a party having knowledge of the facts makes an election between inconsistent remedies, the
election is final and bars any action, suit, or proceeding inconsistent with the elected remedy, in the
absence of fraud by the other party. The first act of election acts as a bar. Equitable in nature, the
37 

doctrine of election of remedies is designed to mitigate possible unfairness to both parties. It rests on
the moral premise that it is fair to hold people responsible for their choices. The purpose of the doctrine
is not to prevent any recourse to any remedy, but to prevent a double redress for a single wrong. 38

The choice of a party between inconsistent remedies results in a waiver by election. Hence, the rule
in Floresca that a claimant cannot simultaneously pursue recovery under the Labor Code and prosecute
an ordinary course of action under the Civil Code. The claimant, by his choice of one remedy, is
deemed to have waived the other.

Waiver is the intentional relinquishment of a known right.39

[It] is an act of understanding that presupposes that a party has knowledge of its rights, but
chooses not to assert them. It must be generally shown by the party claiming a waiver that the
person against whom the waiver is asserted had at the time knowledge, actual or constructive,
of the existence of the party’s rights or of all material facts upon which they depended. 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.
 A person makes a knowing and intelligent waiver when that person knows that a right exists and
has adequate knowledge upon which to make an intelligent decision.

Waiver requires a knowledge of the facts basic to the exercise of the right waived, with an
awareness of its consequences. That a waiver is made knowingly and intelligently must be
illustrated on the record or by the evidence.40

That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the exception
in Floresca.

It is in light of the foregoing principles that we address petitioner’s contentions.

Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in her
complaint that she had availed of benefits from the ECC. It is, thus, erroneous for petitioner to burden
private respondent with raising waiver as an issue. On the contrary, it is the defendant who ought to
plead waiver, as petitioner did in pages 2-3 of its Answer; otherwise, the defense is waived. It is,
41 

therefore, perplexing for petitioner to now contend that the trial court had no jurisdiction over the issue
when petitioner itself pleaded waiver in the proceedings before the trial court.

Does the evidence show that private respondent knew of the facts that led to her husband’s death and
the rights pertaining to a choice of remedies?

It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this case, the
"fact" that served as a basis for nullifying the waiver is the negligence of petitioner’s employees, of
which private respondent purportedly learned only after the prosecutor issued a resolution stating that
there may be civil liability. In Floresca, it was the negligence of the mining corporation and its violation
of government rules and regulations. Negligence, or violation of government rules and regulations, for
that matter, however, is not a fact, but a conclusion of law, over which only the courts have the final say.
Such a conclusion binds no one until the courts have decreed so. It appears, therefore, that the
principle that ignorance or mistake of fact nullifies a waiver has been misapplied in Floresca and in the
case at bar.

In any event, there is no proof that private respondent knew that her husband died in the elevator crash
when on November 15, 1990 she accomplished her application for benefits from the ECC. The police
investigation report is dated November 25, 1990, 10 days after the accomplishment of the form.
Petitioner filed the application in her behalf on November 27, 1990.

There is also no showing that private respondent knew of the remedies available to her when the claim
before the ECC was filed. On the contrary, private respondent testified that she was not aware of her
rights.

Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no one
from compliance therewith. As judicial decisions applying or interpreting the laws or the Constitution
form part of the Philippine legal system (Article 8, Civil Code), private respondent cannot claim
ignorance of this Court’s ruling in Floresca allowing a choice of remedies.

The argument has no merit. The application of Article 3 is limited to mandatory and prohibitory
laws. This may be deduced from the language of the provision, which, notwithstanding a person’s
42 

ignorance, does not excuse his or her compliance with the laws. The rule in Floresca allowing private
respondent a choice of remedies is neither mandatory nor prohibitory. Accordingly, her ignorance
thereof cannot be held against her.

Finally, the Court modifies the affirmance of the award of damages. The records do not indicate the
total amount private respondent ought to receive from the ECC, although it appears from Exhibit
"K" that she received P3,581.85 as initial payment representing the accrued pension from November
43 

1990 to March 1991. Her initial monthly pension, according to the same Exhibit "K," was P596.97 and
present total monthly pension was P716.40. Whether the total amount she will eventually receive from
the ECC is less than the sum of P644,000.00 in total damages awarded by the trial court is subject to
speculation, and the case is remanded to the trial court for such determination. Should the trial court
find that its award is greater than that of the ECC, payments already received by private respondent
under the Labor Code shall be deducted from the trial court'’ award of damages. Consistent with our
ruling in Floresca, this adjudication aims to prevent double compensation.

WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine whether
the award decreed in its decision is more than that of the ECC. Should the award decreed by the trial
court be greater than that awarded by the ECC, payments already made to private respondent pursuant
to the Labor Code shall be deducted therefrom. In all other respects, the Decision of the Court of
Appeals is AFFIRMED.
SO ORDERED.

Davide, Jr., Puno, Pardo, and Ynares-Santiago, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 151258               February 1, 2012

ARTEMIO VILLAREAL, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

x-----------------------x

G.R. No. 154954

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
The HONORABLE COURT OF APPEALS, ANTONIO MARIANO ALMEDA, DALMACIO LIM, Jr.,
JUNEL ANTHONY AMA, ERNESTO JOSE MONTECILLO, VINCENT TECSON, ANTONIO
GENERAL, SANTIAGO RANADA III, NELSON VICTORINO, JAIME MARIA FLORES II, ZOSIMO
MENDOZA, MICHAEL MUSNGI, VICENTE VERDADERO, ETIENNE GUERRERO, JUDE
FERNANDEZ, AMANTE PURISIMA II, EULOGIO SABBAN, PERCIVAL BRIGOLA, PAUL ANGELO
SANTOS, JONAS KARL B. PEREZ, RENATO BANTUG, JR., ADEL ABAS, JOSEPH LLEDO, and
RONAN DE GUZMAN, Respondents.

x-----------------------x

G.R. No. 155101

FIDELITO DIZON, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

x-----------------------x

G.R. Nos. 178057 & 178080

GERARDA H. VILLA, Petitioner,
vs.
MANUEL LORENZO ESCALONA II, MARCUS JOEL CAPELLAN RAMOS, CRISANTO CRUZ
SARUCA, Jr., and ANSELMO ADRIANO, Respondents.

DECISION

SERENO, J.:

The public outrage over the death of Leonardo "Lenny" Villa – the victim in this case – on 10 February
1991 led to a very strong clamor to put an end to hazing. Due in large part to the brave efforts of his
1 

mother, petitioner Gerarda Villa, groups were organized, condemning his senseless and tragic death.
This widespread condemnation prompted Congress to enact a special law, which became effective in
1995, that would criminalize hazing. The intent of the law was to discourage members from making
2 

hazing a requirement for joining their sorority, fraternity, organization, or association. Moreover, the law
3 
was meant to counteract the exculpatory implications of "consent" and "initial innocent act" in the
conduct of initiation rites by making the mere act of hazing punishable or mala prohibita. 4

Sadly, the Lenny Villa tragedy did not discourage hazing activities in the country. Within a year of his
5 

death, six more cases of hazing-related deaths emerged – those of Frederick Cahiyang of the
University of Visayas in Cebu; Raul Camaligan of San Beda College; Felipe Narne of Pamantasan ng
Araullo in Cabanatuan City; Dennis Cenedoza of the Cavite Naval Training Center; Joselito Mangga of
the Philippine Merchant Marine Institute; and Joselito Hernandez of the University of the Philippines in
Baguio City.6

Although courts must not remain indifferent to public sentiments, in this case the general condemnation
of a hazing-related death, they are still bound to observe a fundamental principle in our criminal justice
system – "[N]o act constitutes a crime… unless it is made so by law." Nullum crimen, nulla poena sine
7 

lege. Even if an act is viewed by a large section of the populace as immoral or injurious, it cannot be
considered a crime, absent any law prohibiting its commission. As interpreters of the law, judges are
called upon to set aside emotion, to resist being swayed by strong public sentiments, and to rule strictly
based on the elements of the offense and the facts allowed in evidence.

Before the Court are the consolidated cases docketed as G.R. No. 151258 (Villareal v. People), G.R.
No. 154954 (People v. Court of Appeals), G.R. No. 155101 (Dizon v. People), and G.R. Nos. 178057
and 178080 (Villa v. Escalona).

Facts

The pertinent facts, as determined by the Court of Appeals (CA) and the trial court, are as follows:
8  9 

In February 1991, seven freshmen law students of the Ateneo de Manila University School of Law
signified their intention to join the Aquila Legis Juris Fraternity (Aquila Fraternity). They were Caesar
"Bogs" Asuncion, Samuel "Sam" Belleza, Bienvenido "Bien" Marquez III, Roberto Francis "Bert"
Navera, Geronimo "Randy" Recinto, Felix Sy, Jr., and Leonardo "Lenny" Villa (neophytes).

On the night of 8 February 1991, the neophytes were met by some members of the Aquila Fraternity
(Aquilans) at the lobby of the Ateneo Law School. They all proceeded to Rufo’s Restaurant to have
dinner. Afterwards, they went to the house of Michael Musngi, also an Aquilan, who briefed the
neophytes on what to expect during the initiation rites. The latter were informed that there would be
physical beatings, and that they could quit at any time. Their initiation rites were scheduled to last for
three days. After their "briefing," they were brought to the Almeda Compound in Caloocan City for the
commencement of their initiation.

Even before the neophytes got off the van, they had already received threats and insults from the
Aquilans. As soon as the neophytes alighted from the van and walked towards the pelota court of the
Almeda compound, some of the Aquilans delivered physical blows to them. The neophytes were then
subjected to traditional forms of Aquilan "initiation rites." These rites included the "Indian Run," which
required the neophytes to run a gauntlet of two parallel rows of Aquilans, each row delivering blows to
the neophytes; the "Bicol Express," which obliged the neophytes to sit on the floor with their backs
against the wall and their legs outstretched while the Aquilans walked, jumped, or ran over their legs;
the "Rounds," in which the neophytes were held at the back of their pants by the "auxiliaries" (the
Aquilans charged with the duty of lending assistance to neophytes during initiation rites), while the latter
were being hit with fist blows on their arms or with knee blows on their thighs by two Aquilans; and the
"Auxies’ Privilege Round," in which the auxiliaries were given the opportunity to inflict physical pain on
the neophytes. During this time, the neophytes were also indoctrinated with the fraternity principles.
They survived their first day of initiation.

On the morning of their second day – 9 February 1991 – the neophytes were made to present comic
plays and to play rough basketball. They were also required to memorize and recite the Aquila
Fraternity’s principles. Whenever they would give a wrong answer, they would be hit on their arms or
legs. Late in the afternoon, the Aquilans revived the initiation rites proper and proceeded to torment
them physically and psychologically. The neophytes were subjected to the same manner of hazing that
they endured on the first day of initiation. After a few hours, the initiation for the day officially ended.

After a while, accused non-resident or alumni fraternity members Fidelito Dizon (Dizon) and Artemio
10 

Villareal (Villareal) demanded that the rites be reopened. The head of initiation rites, Nelson Victorino
(Victorino), initially refused. Upon the insistence of Dizon and Villareal, however, he reopened the
initiation rites. The fraternity members, including Dizon and Villareal, then subjected the neophytes to
"paddling" and to additional rounds of physical pain. Lenny received several paddle blows, one of which
was so strong it sent him sprawling to the ground. The neophytes heard him complaining of intense
pain and difficulty in breathing. After their last session of physical beatings, Lenny could no longer walk.
He had to be carried by the auxiliaries to the carport. Again, the initiation for the day was officially
ended, and the neophytes started eating dinner. They then slept at the carport.
After an hour of sleep, the neophytes were suddenly roused by Lenny’s shivering and incoherent
mumblings. Initially, Villareal and Dizon dismissed these rumblings, as they thought he was just
overacting. When they realized, though, that Lenny was really feeling cold, some of the Aquilans started
helping him. They removed his clothes and helped him through a sleeping bag to keep him warm.
When his condition worsened, the Aquilans rushed him to the hospital. Lenny was pronounced dead on
arrival.

Consequently, a criminal case for homicide was filed against the following 35 Aquilans:

In Criminal Case No. C-38340(91)

1. Fidelito Dizon (Dizon)

2. Artemio Villareal (Villareal)

3. Efren de Leon (De Leon)

4. Vincent Tecson (Tecson)

5. Junel Anthony Ama (Ama)

6. Antonio Mariano Almeda (Almeda)

7. Renato Bantug, Jr. (Bantug)

8. Nelson Victorino (Victorino)

9. Eulogio Sabban (Sabban)

10. Joseph Lledo (Lledo)

11. Etienne Guerrero (Guerrero)

12. Michael Musngi (Musngi)

13. Jonas Karl Perez (Perez)

14. Paul Angelo Santos (Santos)

15. Ronan de Guzman (De Guzman)

16. Antonio General (General)

17. Jaime Maria Flores II (Flores)

18. Dalmacio Lim, Jr. (Lim)

19. Ernesto Jose Montecillo (Montecillo)

20. Santiago Ranada III (Ranada)

21. Zosimo Mendoza (Mendoza)

22. Vicente Verdadero (Verdadero)

23. Amante Purisima II (Purisima)

24. Jude Fernandez (J. Fernandez)

25. Adel Abas (Abas)

26. Percival Brigola (Brigola)

In Criminal Case No. C-38340

1. Manuel Escalona II (Escalona)

 2. Crisanto Saruca, Jr. (Saruca)

3. Anselmo Adriano (Adriano)

4. Marcus Joel Ramos (Ramos)

5. Reynaldo Concepcion (Concepcion)

6. Florentino Ampil (Ampil)

7. Enrico de Vera III (De Vera)

8. Stanley Fernandez (S. Fernandez)

9. Noel Cabangon (Cabangon)

Twenty-six of the accused Aquilans in Criminal Case No. C-38340(91) were jointly tried. On the other
11 

hand, the trial against the remaining nine accused in Criminal Case No. C-38340 was held in abeyance
due to certain matters that had to be resolved first. 12

On 8 November 1993, the trial court rendered judgment in Criminal Case No. C-38340(91), holding the
26 accused guilty beyond reasonable doubt of the crime of homicide, penalized with reclusion temporal
under Article 249 of the Revised Penal Code. A few weeks after the trial court rendered its judgment, or
13 

on 29 November 1993, Criminal Case No. C-38340 against the remaining nine accused commenced
anew. 14

On 10 January 2002, the CA in (CA-G.R. No. 15520) set aside the finding of conspiracy by the trial
15 

court in Criminal Case No. C-38340(91) and modified the criminal liability of each of the accused
according to individual participation. Accused De Leon had by then passed away, so the following
Decision applied only to the remaining 25 accused, viz:

1. Nineteen of the accused-appellants – Victorino, Sabban, Lledo, Guerrero, Musngi, Perez, De

Guzman, Santos, General, Flores, Lim, Montecillo, Ranada, Mendoza, Verdadero, Purisima,
Fernandez, Abas, and Brigola (Victorino et al.) – were acquitted, as their individual guilt was not
established by proof beyond reasonable doubt.

2. Four of the accused-appellants – Vincent Tecson, Junel Anthony Ama, Antonio Mariano
Almeda, and Renato Bantug, Jr. (Tecson et al.) – were found guilty of the crime of slight
physical injuries and sentenced to 20 days of arresto menor. They were also ordered to jointly
pay the heirs of the victim the sum of ₱ 30,000 as indemnity.

3. Two of the accused-appellants – Fidelito Dizon and Artemio Villareal – were found guilty
beyond reasonable doubt of the crime of homicide under Article 249 of the Revised Penal Code.
Having found no mitigating or aggravating circumstance, the CA sentenced them to an
indeterminate sentence of 10 years of prision mayor to 17 years of reclusion temporal. They
were also ordered to indemnify, jointly and severally, the heirs of Lenny Villa in the sum of ₱
50,000 and to pay the additional amount of ₱ 1,000,000 by way of moral damages.

On 5 August 2002, the trial court in Criminal Case No. 38340 dismissed the charge against accused
Concepcion on the ground of violation of his right to speedy trial. Meanwhile, on different dates
16 

between the years 2003 and 2005, the trial court denied the respective Motions to Dismiss of accused
Escalona, Ramos, Saruca, and Adriano. On 25 October 2006, the CA in CA-G.R. SP Nos. 89060 &
17 

90153 reversed the trial court’s Orders and dismissed the criminal case against Escalona, Ramos,
18 

Saruca, and Adriano on the basis of violation of their right to speedy trial. 19

From the aforementioned Decisions, the five (5) consolidated Petitions were individually brought before
this Court.

G.R. No. 151258 – Villareal v. People

The instant case refers to accused Villareal’s Petition for Review on Certiorari under Rule 45. The
Petition raises two reversible errors allegedly committed by the CA in its Decision dated 10 January
2002 in CA-G.R. No. 15520 – first, denial of due process; and, second, conviction absent proof beyond
reasonable doubt. 20

While the Petition was pending before this Court, counsel for petitioner Villareal filed a Notice of Death
of Party on 10 August 2011. According to the Notice, petitioner Villareal died on 13 March 2011.
Counsel thus asserts that the subject matter of the Petition previously filed by petitioner does not
survive the death of the accused.

G.R. No. 155101 – Dizon v. People

Accused Dizon filed a Rule 45 Petition for Review on Certiorari, questioning the CA’s Decision dated 10
January 2002 and Resolution dated 30 August 2002 in CA-G.R. No. 15520. Petitioner sets forth two
21 

main issues – first, that he was denied due process when the CA sustained the trial court’s forfeiture of
his right to present evidence; and, second, that he was deprived of due process when the CA did not
apply to him the same "ratio decidendi that served as basis of acquittal of the other accused." 22

As regards the first issue, the trial court made a ruling, which forfeited Dizon’s right to present evidence
during trial. The trial court expected Dizon to present evidence on an earlier date since a co-accused,
Antonio General, no longer presented separate evidence during trial. According to Dizon, his right
should not have been considered as waived because he was justified in asking for a postponement. He
argues that he did not ask for a resetting of any of the hearing dates and in fact insisted that he was
ready to present evidence on the original pre-assigned schedule, and not on an earlier hearing date.

Regarding the second issue, petitioner contends that he should have likewise been acquitted, like the
other accused, since his acts were also part of the traditional initiation rites and were not tainted by evil
motives. He claims that the additional paddling session was part of the official activity of the fraternity.
23 

He also points out that one of the neophytes admitted that the chairperson of the initiation rites "decided
that [Lenny] was fit enough to undergo the initiation so Mr. Villareal proceeded to do the
paddling…." Further, petitioner echoes the argument of the Solicitor General that "the individual blows
24 

inflicted by Dizon and Villareal could not have resulted in Lenny’s death." The Solicitor General
25 

purportedly averred that, "on the contrary, Dr. Arizala testified that the injuries suffered by Lenny could
not be considered fatal if taken individually, but if taken collectively, the result is the violent death of the
victim."
26

Petitioner then counters the finding of the CA that he was motivated by ill will. He claims that Lenny’s
father could not have stolen the parking space of Dizon’s father, since the latter did not have a car, and
their fathers did not work in the same place or office. Revenge for the loss of the parking space was the
alleged ill motive of Dizon. According to petitioner, his utterances regarding a stolen parking space were
only part of the "psychological initiation." He then cites the testimony of Lenny’s co-neophyte – witness
Marquez – who admitted knowing "it was not true and that he was just making it up…." 27

Further, petitioner argues that his alleged motivation of ill will was negated by his show of concern for
Villa after the initiation rites. Dizon alludes to the testimony of one of the neophytes, who mentioned that
the former had kicked the leg of the neophyte and told him to switch places with Lenny to prevent the
latter’s chills. When the chills did not stop, Dizon, together with Victorino, helped Lenny through a
sleeping bag and made him sit on a chair. According to petitioner, his alleged ill motivation is
contradicted by his manifestation of compassion and concern for the victim’s well-being.

G.R. No. 154954 – People v. Court of Appeals

This Petition for Certiorari under Rule 65 seeks the reversal of the CA’s Decision dated 10 January
2002 and Resolution dated 30 August 2002 in CA-G.R. No. 15520, insofar as it acquitted 19 (Victorino
et al.) and convicted 4 (Tecson et al.) of the accused Aquilans of the lesser crime of slight physical
injuries. According to the Solicitor General, the CA erred in holding that there could have been no
28 

conspiracy to commit hazing, as hazing or fraternity initiation had not yet been criminalized at the time
Lenny died.

In the alternative, petitioner claims that the ruling of the trial court should have been upheld, inasmuch
as it found that there was conspiracy to inflict physical injuries on Lenny. Since the injuries led to the
victim’s death, petitioner posits that the accused Aquilans are criminally liable for the resulting crime of
homicide, pursuant to Article 4 of the Revised Penal Code. The said article provides: "Criminal liability
29 

shall be incurred… [b]y any person committing a felony (delito) although the wrongful act done be
different from that which he intended."

Petitioner also argues that the rule on double jeopardy is inapplicable. According to the Solicitor
General, the CA acted with grave abuse of discretion, amounting to lack or excess of jurisdiction, in
setting aside the trial court’s finding of conspiracy and in ruling that the criminal liability of all the
accused must be based on their individual participation in the commission of the crime.

G.R. Nos. 178057 and 178080 – Villa v. Escalona

Petitioner Villa filed the instant Petition for Review on Certiorari, praying for the reversal of the CA’s
Decision dated 25 October 2006 and Resolution dated 17 May 2007 in CA-G.R. S.P. Nos. 89060 and
90153. The Petition involves the dismissal of the criminal charge filed against Escalona, Ramos,
30 

Saruca, and Adriano.

Due to "several pending incidents," the trial court ordered a separate trial for accused Escalona,
Saruca, Adriano, Ramos, Ampil, Concepcion, De Vera, S. Fernandez, and Cabangon (Criminal Case
No. C-38340) to commence after proceedings against the 26 other accused in Criminal Case No. C-
38340(91) shall have terminated. On 8 November 1993, the trial court found the 26 accused guilty
beyond reasonable doubt. As a result, the proceedings in Criminal Case No. C-38340 involving the nine
other co-accused recommenced on 29 November 1993. For "various reasons," the initial trial of the
case did not commence until 28 March 2005, or almost 12 years after the arraignment of the nine
accused.

Petitioner Villa assails the CA’s dismissal of the criminal case involving 4 of the 9 accused, namely,
Escalona, Ramos, Saruca, and Adriano. She argues that the accused failed to assert their right to
speedy trial within a reasonable period of time. She also points out that the prosecution cannot be
faulted for the delay, as the original records and the required evidence were not at its disposal, but were
still in the appellate court.

We resolve herein the various issues that we group into five.

Issues

1. Whether the forfeiture of petitioner Dizon’s right to present evidence constitutes denial of due
process;

2. Whether the CA committed grave abuse of discretion, amounting to lack or excess of

jurisdiction when it dismissed the case against Escalona, Ramos, Saruca, and Adriano for
violation of the right of the accused to speedy trial;

3. Whether the CA committed grave abuse of discretion, amounting to lack or excess of

jurisdiction, when it set aside the finding of conspiracy by the trial court and adjudicated the
liability of each accused according to individual participation;

4. Whether accused Dizon is guilty of homicide; and

5. Whether the CA committed grave abuse of discretion when it pronounced Tecson, Ama,
Almeda, and Bantug guilty only of slight physical injuries.

Discussion

Resolution on Preliminary Matters

G.R. No. 151258 – Villareal v. People

In a Notice dated 26 September 2011 and while the Petition was pending resolution, this Court took
note of counsel for petitioner’s Notice of Death of Party.

According to Article 89(1) of the Revised Penal Code, criminal liability for personal penalties is totally
extinguished by the death of the convict. In contrast, criminal liability for pecuniary penalties is
extinguished if the offender dies prior to final judgment. The term "personal penalties" refers to the
service of personal or imprisonment penalties, while the term "pecuniary penalties" (las pecuniarias)
31 

refers to fines and costs, including civil liability predicated on the criminal offense complained of (i.e.,
32 

civil liability ex delicto). However, civil liability based on a source of obligation other than the delict
33 

survives the death of the accused and is recoverable through a separate civil action. 34

Thus, we hold that the death of petitioner Villareal extinguished his criminal liability for both personal
and pecuniary penalties, including his civil liability directly arising from the delict complained of.
Consequently, his Petition is hereby dismissed, and the criminal case against him deemed closed and
terminated.

G.R. No. 155101 (Dizon v. People)

In an Order dated 28 July 1993, the trial court set the dates for the reception of evidence for accused-
petitioner Dizon on the 8th, 15th, and 22nd of September; and the 5th and 12 of October 1993. The 35 

Order likewise stated that "it will not entertain any postponement and that all the accused who have not
yet presented their respective evidence should be ready at all times down the line, with their evidence
on all said dates. Failure on their part to present evidence when required shall therefore be construed
as waiver to present evidence." 36
However, on 19 August 1993, counsel for another accused manifested in open court that his client –
Antonio General – would no longer present separate evidence. Instead, the counsel would adopt the
testimonial evidence of the other accused who had already testified. Because of this development and
37 

pursuant to the trial court’s Order that the parties "should be ready at all times down the line," the trial
court expected Dizon to present evidence on the next trial date – 25 August 1993 – instead of his
originally assigned dates. The original dates were supposed to start two weeks later, or on 8 September
1993. Counsel for accused Dizon was not able to present evidence on the accelerated date. To
38 

address the situation, counsel filed a Constancia on 25 August 1993, alleging that he had to appear in a
previously scheduled case, and that he would be ready to present evidence on the dates originally
assigned to his clients. The trial court denied the Manifestation on the same date and treated the
39 

Constancia as a motion for postponement, in violation of the three-day-notice rule under the Rules of
Court. Consequently, the trial court ruled that the failure of Dizon to present evidence amounted to a
40 

waiver of that right.

41

Accused-petitioner Dizon thus argues that he was deprived of due process of law when the trial court
forfeited his right to present evidence. According to him, the postponement of the 25 August 1993
hearing should have been considered justified, since his original pre-assigned trial dates were not
supposed to start until 8 September 1993, when he was scheduled to present evidence. He posits that
he was ready to present evidence on the dates assigned to him. He also points out that he did not ask
for a resetting of any of the said hearing dates; that he in fact insisted on being allowed to present
evidence on the dates fixed by the trial court. Thus, he contends that the trial court erred in accelerating
the schedule of presentation of evidence, thereby invalidating the finding of his guilt.

The right of the accused to present evidence is guaranteed by no less than the Constitution
itself. Article III, Section 14(2) thereof, provides that "in all criminal prosecutions, the accused … shall
42 

enjoy the right to be heard by himself and counsel…" This constitutional right includes the right to
present evidence in one’s defense, as well as the right to be present and defend oneself in person at
43 

every stage of the proceedings. 44

In Crisostomo v. Sandiganbayan, the Sandiganbayan set the hearing of the defense’s presentation of
45 

evidence for 21, 22 and 23 June 1995. The 21 June 1995 hearing was cancelled due to "lack of quorum
in the regular membership" of the Sandiganbayan’s Second Division and upon the agreement of the
parties. The hearing was reset for the next day, 22 June 1995, but Crisostomo and his counsel failed to
attend. The Sandiganbayan, on the very same day, issued an Order directing the issuance of a warrant
for the arrest of Crisostomo and the confiscation of his surety bond. The Order further declared that he
had waived his right to present evidence because of his nonappearance at "yesterday’s and today’s
scheduled hearings." In ruling against the Order, we held thus:

Under Section 2(c), Rule 114 and Section 1(c), Rule 115 of the Rules of Court, Crisostomo’s non-
appearance during the 22 June 1995 trial was merely a waiver of his right to be present for trial on such
date only and not for the succeeding trial dates…

x x x           x x x          x x x

Moreover, Crisostomo’s absence on the 22 June 1995 hearing should not have been deemed as a
waiver of his right to present evidence. While constitutional rights may be waived, such waiver must be
clear and must be coupled with an actual intention to relinquish the right. Crisostomo did not voluntarily
waive in person or even through his counsel the right to present evidence. The Sandiganbayan
imposed the waiver due to the agreement of the prosecution, Calingayan, and Calingayan's counsel.

In criminal cases where the imposable penalty may be death, as in the present case, the court is called
upon to see to it that the accused is personally made aware of the consequences of a waiver of the
right to present evidence. In fact, it is not enough that the accused is simply warned of the
consequences of another failure to attend the succeeding hearings. The court must first explain to the
accused personally in clear terms the exact nature and consequences of a waiver. Crisostomo was not
even forewarned. The Sandiganbayan simply went ahead to deprive Crisostomo of his right to present
evidence without even allowing Crisostomo to explain his absence on the 22 June 1995 hearing.

Clearly, the waiver of the right to present evidence in a criminal case involving a grave penalty is not
assumed and taken lightly. The presence of the accused and his counsel is indispensable so that the
court could personally conduct a searching inquiry into the waiver x x x. (Emphasis supplied) 46 

The trial court should not have deemed the failure of petitioner to present evidence on 25 August 1993
as a waiver of his right to present evidence. On the contrary, it should have considered the excuse of
counsel justified, especially since counsel for another accused – General – had made a last-minute
adoption of testimonial evidence that freed up the succeeding trial dates; and since Dizon was not
scheduled to testify until two weeks later. At any rate, the trial court pre-assigned five hearing dates for
the reception of evidence. If it really wanted to impose its Order strictly, the most it could have done was
to forfeit one out of the five days set for Dizon’s testimonial evidence. Stripping the accused of all his
pre-assigned trial dates constitutes a patent denial of the constitutionally guaranteed right to due
process.

Nevertheless, as in the case of an improvident guilty plea, an invalid waiver of the right to present
evidence and be heard does not per se work to vacate a finding of guilt in the criminal case or to
enforce an automatic remand of the case to the trial court. In People v. Bodoso, we ruled that where
47 

facts have adequately been represented in a criminal case, and no procedural unfairness or irregularity
has prejudiced either the prosecution or the defense as a result of the invalid waiver, the rule is that a
guilty verdict may nevertheless be upheld if the judgment is supported beyond reasonable doubt by the
evidence on record. 48

We do not see any material inadequacy in the relevant facts on record to resolve the case at bar.
Neither can we see any "procedural unfairness or irregularity" that would substantially prejudice either
the prosecution or the defense as a result of the invalid waiver. In fact, the arguments set forth by
accused Dizon in his Petition corroborate the material facts relevant to decide the matter. Instead, what
he is really contesting in his Petition is the application of the law to the facts by the trial court and the
CA. Petitioner Dizon admits direct participation in the hazing of Lenny Villa by alleging in his Petition
that "all actions of the petitioner were part of the traditional rites," and that "the alleged extension of the
initiation rites was not outside the official activity of the fraternity." He even argues that "Dizon did not
49 

request for the extension and he participated only after the activity was sanctioned." 50

For one reason or another, the case has been passed or turned over from one judge or justice to
another – at the trial court, at the CA, and even at the Supreme Court. Remanding the case for the
reception of the evidence of petitioner Dizon would only inflict further injustice on the parties. This case
has been going on for almost two decades. Its resolution is long overdue. Since the key facts necessary
to decide the case have already been determined, we shall proceed to decide it.

G.R. Nos. 178057 and 178080 (Villa v. Escalona)

Petitioner Villa argues that the case against Escalona, Ramos, Saruca, and Adriano should not have
been dismissed, since they failed to assert their right to speedy trial within a reasonable period of time.
She points out that the accused failed to raise a protest during the dormancy of the criminal case
against them, and that they asserted their right only after the trial court had dismissed the case against
their co-accused Concepcion. Petitioner also emphasizes that the trial court denied the respective
Motions to Dismiss filed by Saruca, Escalona, Ramos, and Adriano, because it found that "the
prosecution could not be faulted for the delay in the movement of this case when the original records
and the evidence it may require were not at its disposal as these were in the Court of Appeals." 51

The right of the accused to a speedy trial has been enshrined in Sections 14(2) and 16, Article III of the
1987 Constitution. This right requires that there be a trial free from vexatious, capricious or oppressive
52 

delays. The right is deemed violated when the proceeding is attended with unjustified postponements
53 

of trial, or when a long period of time is allowed to elapse without the case being tried and for no cause
or justifiable motive. In determining the right of the accused to speedy trial, courts should do more than
54 

a mathematical computation of the number of postponements of the scheduled hearings of the

case. The conduct of both the prosecution and the defense must be weighed. Also to be considered
55  56 

are factors such as the length of delay, the assertion or non-assertion of the right, and the prejudice
wrought upon the defendant. 57

We have consistently ruled in a long line of cases that a dismissal of the case pursuant to the right of
the accused to speedy trial is tantamount to acquittal. As a consequence, an appeal or a
58 

reconsideration of the dismissal would amount to a violation of the principle of double jeopardy. As we
59 

have previously discussed, however, where the dismissal of the case is capricious, certiorari lies. The 60 

rule on double jeopardy is not triggered when a petition challenges the validity of the order of dismissal
instead of the correctness thereof. Rather, grave abuse of discretion amounts to lack of jurisdiction,
61 

and lack of jurisdiction prevents double jeopardy from attaching. 62

We do not see grave abuse of discretion in the CA’s dismissal of the case against accused Escalona,
Ramos, Saruca, and Adriano on the basis of the violation of their right to speedy trial. The court held
thus:

An examination of the procedural history of this case would reveal that the following factors contributed
to the slow progress of the proceedings in the case below:

x x x           x x x          x x x

5) The fact that the records of the case were elevated to the Court of Appeals and the prosecution’s
failure to comply with the order of the court a quo requiring them to secure certified true copies of the
same.
 x x x           x x x          x x x

While we are prepared to concede that some of the foregoing factors that contributed to the delay of the
trial of the petitioners are justifiable, We nonetheless hold that their right to speedy trial has been utterly
violated in this case x x x.

x x x           x x x          x x x

[T]he absence of the records in the trial court [was] due to the fact that the records of the case were
elevated to the Court of Appeals, and the prosecution’s failure to comply with the order of the court a
quo requiring it to secure certified true copies of the same. What is glaring from the records is the fact
that as early as September 21, 1995, the court a quo already issued an Order requiring the prosecution,
through the Department of Justice, to secure the complete records of the case from the Court of
Appeals. The prosecution did not comply with the said Order as in fact, the same directive was
repeated by the court a quo in an Order dated December 27, 1995. Still, there was no compliance on
the part of the prosecution. It is not stated when such order was complied with. It appears, however,
that even until August 5, 2002, the said records were still not at the disposal of the trial court because
the lack of it was made the basis of the said court in granting the motion to dismiss filed by co-accused
Concepcion x x x.

x x x           x x x          x x x

It is likewise noticeable that from December 27, 1995, until August 5, 2002, or for a period of almost
seven years, there was no action at all on the part of the court a quo. Except for the pleadings filed by
both the prosecution and the petitioners, the latest of which was on January 29, 1996, followed by
petitioner Saruca’s motion to set case for trial on August 17, 1998 which the court did not act upon, the
case remained dormant for a considerable length of time. This prolonged inactivity whatsoever is
precisely the kind of delay that the constitution frowns upon x x x. (Emphasis supplied)
63 

This Court points out that on 10 January 1992, the final amended Information was filed against
Escalona, Ramos, Saruca, Ampil, S. Fernandez, Adriano, Cabangon, Concepcion, and De Vera. On 29 64 

November 1993, they were all arraigned. Unfortunately, the initial trial of the case did not commence
65 

until 28 March 2005 or almost 12 years after arraignment. 66

As illustrated in our ruling in Abardo v. Sandiganbayan, the unexplained interval or inactivity of the
Sandiganbayan for close to five years since the arraignment of the accused amounts to an
unreasonable delay in the disposition of cases – a clear violation of the right of the accused to a speedy
disposition of cases. Thus, we held:
67 

The delay in this case measures up to the unreasonableness of the delay in the disposition of cases in
Angchangco, Jr. vs. Ombudsman, where the Court found the delay of six years by the Ombudsman in
resolving the criminal complaints to be violative of the constitutionally guaranteed right to a speedy
disposition of cases; similarly, in Roque vs. Office of the Ombudsman, where the Court held that the
delay of almost six years disregarded the Ombudsman's duty to act promptly on complaints before him;
and in Cervantes vs. Sandiganbayan, where the Court held that the Sandiganbayan gravely abused its
discretion in not quashing the information which was filed six years after the initiatory complaint was
filed and thereby depriving petitioner of his right to a speedy disposition of the case. So it must be in the
instant case, where the reinvestigation by the Ombudsman has dragged on for a decade
already. (Emphasis supplied)
68 

From the foregoing principles, we affirm the ruling of the CA in CA-G.R. SP No. 89060 that accused
Escalona et al.’s right to speedy trial was violated. Since there is nothing in the records that would show
that the subject of this Petition includes accused Ampil, S. Fernandez, Cabangon, and De Vera, the
effects of this ruling shall be limited to accused Escalona, Ramos, Saruca, and Adriano.

G.R. No. 154954 (People v. Court of Appeals)

The rule on double jeopardy is one of the pillars of our criminal justice system. It dictates that when a
person is charged with an offense, and the case is terminated – either by acquittal or conviction or in
any other manner without the consent of the accused – the accused cannot again be charged with the
same or an identical offense. This principle is founded upon the law of reason, justice and
69 

conscience. It is embodied in the civil law maxim non bis in idem found in the common law of England
70 

and undoubtedly in every system of jurisprudence. It found expression in the Spanish Law, in the
71 

Constitution of the United States, and in our own Constitution as one of the fundamental rights of the
citizen, viz:
72 

Article III – Bill of Rights

Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is
punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to
another prosecution for the same act.

Rule 117, Section 7 of the Rules of Court, which implements this particular constitutional right, provides
as follows: 73

SEC. 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or
acquitted, or the case against him dismissed or otherwise terminated without his express consent by a
court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in
form and substance to sustain a conviction and after the accused had pleaded to the charge, the
conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution
for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense
which necessarily includes or is necessarily included in the offense charged in the former complaint or
information.

The rule on double jeopardy thus prohibits the state from appealing the judgment in order to reverse the
acquittal or to increase the penalty imposed either through a regular appeal under Rule 41 of the Rules
of Court or through an appeal by certiorari on pure questions of law under Rule 45 of the same
Rules. The requisites for invoking double jeopardy are the following: (a) there is a valid complaint or
74 

information; (b) it is filed before a competent court; (c) the defendant pleaded to the charge; and (d) the
defendant was acquitted or convicted, or the case against him or her was dismissed or otherwise
terminated without the defendant’s express consent. 75

As we have reiterated in People v. Court of Appeals and Galicia, "[a] verdict of acquittal is immediately
final and a reexamination of the merits of such acquittal, even in the appellate courts, will put the
accused in jeopardy for the same offense. The finality-of-acquittal doctrine has several avowed
purposes. Primarily, it prevents the State from using its criminal processes as an instrument of
harassment to wear out the accused by a multitude of cases with accumulated trials. It also serves the
additional purpose of precluding the State, following an acquittal, from successively retrying the
defendant in the hope of securing a conviction. And finally, it prevents the State, following conviction,
from retrying the defendant again in the hope of securing a greater penalty." We further stressed that
76 

"an acquitted defendant is entitled to the right of repose as a direct consequence of the finality of his
acquittal." 77

This prohibition, however, is not absolute. The state may challenge the lower court’s acquittal of the
accused or the imposition of a lower penalty on the latter in the following recognized exceptions: (1)
where the prosecution is deprived of a fair opportunity to prosecute and prove its case, tantamount to a
deprivation of due process; (2) where there is a finding of mistrial; or (3) where there has been a grave
78  79 

abuse of discretion.80

The third instance refers to this Court’s judicial power under Rule 65 to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government. Here, the party asking for the review must show the
81 

presence of a whimsical or capricious exercise of judgment equivalent to lack of jurisdiction; a patent

and gross abuse of discretion amounting to an evasion of a positive duty or to a virtual refusal to
perform a duty imposed by law or to act in contemplation of law; an exercise of power in an arbitrary
and despotic manner by reason of passion and hostility; or a blatant abuse of authority to a point so
82 

grave and so severe as to deprive the court of its very power to dispense justice. In such an event, the
83 

accused cannot be considered to be at risk of double jeopardy. 84

The Solicitor General filed a Rule 65 Petition for Certiorari, which seeks the reversal of (1) the acquittal
of Victorino et al. and (2) the conviction of Tecson et al. for the lesser crime of slight physical injuries,
both on the basis of a misappreciation of facts and evidence. According to the Petition, "the decision of
the Court of Appeals is not in accordance with law because private complainant and petitioner were
denied due process of law when the public respondent completely ignored the a) Position Paper x x x b)
the Motion for Partial Reconsideration x x x and c) the petitioner’s Comment x x x." Allegedly, the CA
85 

ignored evidence when it adopted the theory of individual responsibility; set aside the finding of
conspiracy by the trial court; and failed to apply Article 4 of the Revised Penal Code. The Solicitor
86 

General also assails the finding that the physical blows were inflicted only by Dizon and Villareal, as
well as the appreciation of Lenny Villa’s consent to hazing. 87

In our view, what the Petition seeks is that we reexamine, reassess, and reweigh the probative value of
the evidence presented by the parties. In People v. Maquiling, we held that grave abuse of discretion
88 

cannot be attributed to a court simply because it allegedly misappreciated the facts and the
evidence. Mere errors of judgment are correctible by an appeal or a petition for review under Rule 45 of
89 

the Rules of Court, and not by an application for a writ of certiorari. Therefore, pursuant to the rule on
90 

double jeopardy, we are constrained to deny the Petition contra Victorino et al. – the 19 acquitted
fraternity members.
We, however, modify the assailed judgment as regards Tecson, Ama, Almeda, and Bantug – the four
fraternity members convicted of slight physical injuries.

Indeed, we have ruled in a line of cases that the rule on double jeopardy similarly applies when the
state seeks the imposition of a higher penalty against the accused. We have also recognized, however,
91 

that certiorari may be used to correct an abusive judgment upon a clear demonstration that the lower
court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense
justice. The present case is one of those instances of grave abuse of discretion.
92 

In imposing the penalty of slight physical injuries on Tecson, Ama, Almeda, and Bantug, the CA
reasoned thus:

Based on the medical findings, it would appear that with the exclusion of the fatal wounds inflicted by
the accused Dizon and Villareal, the injuries sustained by the victim as a result of the physical
punishment heaped on him were serious in nature. However, by reason of the death of the victim, there
can be no precise means to determine the duration of the incapacity or the medical attendance
required. To do so, at this stage would be merely speculative. In a prosecution for this crime where the
category of the offense and the severity of the penalty depend on the period of illness or incapacity for
labor, the length of this period must likewise be proved beyond reasonable doubt in much the same
manner as the same act charged [People v. Codilla, CA-G.R. No. 4079-R, June 26, 1950]. And when
proof of the said period is absent, the crime committed should be deemed only as slight physical
injuries [People v. De los Santos, CA, 59 O.G. 4393, citing People v. Penesa, 81 Phil. 398]. As such,
this Court is constrained to rule that the injuries inflicted by the appellants, Tecson, Ama, Almeda and
Bantug, Jr., are only slight and not serious, in nature. (Emphasis supplied and citations included)
93 

The appellate court relied on our ruling in People v. Penesa in finding that the four accused should be
94 

held guilty only of slight physical injuries. According to the CA, because of "the death of the victim, there
can be no precise means to determine the duration of the incapacity or medical attendance
required." The reliance on Penesa was utterly misplaced. A review of that case would reveal that the
95 

accused therein was guilty merely of slight physical injuries, because the victim’s injuries neither caused
incapacity for labor nor required medical attendance. Furthermore, he did not die. His injuries were not
96  97 

even serious. Since Penesa involved a case in which the victim allegedly suffered physical injuries and
98 

not death, the ruling cited by the CA was patently inapplicable.

On the contrary, the CA’s ultimate conclusion that Tecson, Ama, Almeda, and Bantug were liable
merely for slight physical injuries grossly contradicts its own findings of fact. According to the court, the
four accused "were found to have inflicted more than the usual punishment undertaken during such
initiation rites on the person of Villa." It then adopted the NBI medico-legal officer’s findings that the
99 

antecedent cause of Lenny Villa’s death was the "multiple traumatic injuries" he suffered from the
initiation rites. Considering that the CA found that the "physical punishment heaped on [Lenny Villa
100 

was] serious in nature," it was patently erroneous for the court to limit the criminal liability to slight
101 

physical injuries, which is a light felony.

Article 4(1) of the Revised Penal Code dictates that the perpetrator shall be liable for the consequences
of an act, even if its result is different from that intended. Thus, once a person is found to have
committed an initial felonious act, such as the unlawful infliction of physical injuries that results in the
death of the victim, courts are required to automatically apply the legal framework governing the
destruction of life. This rule is mandatory, and not subject to discretion.

The CA’s application of the legal framework governing physical injuries – punished under Articles 262 to
266 for intentional felonies and Article 365 for culpable felonies – is therefore tantamount to a
whimsical, capricious, and abusive exercise of judgment amounting to lack of jurisdiction. According to
the Revised Penal Code, the mandatory and legally imposable penalty in case the victim dies should be
based on the framework governing the destruction of the life of a person, punished under Articles 246 to
261 for intentional felonies and Article 365 for culpable felonies, and not under the aforementioned
provisions. We emphasize that these two types of felonies are distinct from and legally inconsistent with
each other, in that the accused cannot be held criminally liable for physical injuries when actual death
occurs.102

Attributing criminal liability solely to Villareal and Dizon – as if only their acts, in and of themselves,
caused the death of Lenny Villa – is contrary to the CA’s own findings. From proof that the death of the
victim was the cumulative effect of the multiple injuries he suffered, the only logical conclusion is that
103 

criminal responsibility should redound to all those who have been proven to have directly participated in
the infliction of physical injuries on Lenny. The accumulation of bruising on his body caused him to
suffer cardiac arrest. Accordingly, we find that the CA committed grave abuse of discretion amounting
to lack or excess of jurisdiction in finding Tecson, Ama, Almeda, and Bantug criminally liable for slight
physical injuries. As an allowable exception to the rule on double jeopardy, we therefore give due
course to the Petition in G.R. No. 154954.
 Resolution on Ultimate Findings

According to the trial court, although hazing was not (at the time) punishable as a crime, the intentional
infliction of physical injuries on Villa was nonetheless a felonious act under Articles 263 to 266 of the
Revised Penal Code. Thus, in ruling against the accused, the court a quo found that pursuant to Article
4(1) of the Revised Penal Code, the accused fraternity members were guilty of homicide, as it was the
direct, natural and logical consequence of the physical injuries they had intentionally inflicted. 104

The CA modified the trial court’s finding of criminal liability. It ruled that there could have been no
conspiracy since the neophytes, including Lenny Villa, had knowingly consented to the conduct of
hazing during their initiation rites. The accused fraternity members, therefore, were liable only for the
consequences of their individual acts. Accordingly, 19 of the accused – Victorino et al. – were acquitted;
4 of them – Tecson et al. – were found guilty of slight physical injuries; and the remaining 2 – Dizon and
Villareal – were found guilty of homicide.

The issue at hand does not concern a typical criminal case wherein the perpetrator clearly commits a
felony in order to take revenge upon, to gain advantage over, to harm maliciously, or to get even with,
the victim. Rather, the case involves an ex ante situation in which a man – driven by his own desire to
join a society of men – pledged to go through physically and psychologically strenuous admission
rituals, just so he could enter the fraternity. Thus, in order to understand how our criminal laws apply to
such situation absent the Anti-Hazing Law, we deem it necessary to make a brief exposition on the
underlying concepts shaping intentional felonies, as well as on the nature of physical and psychological
initiations widely known as hazing.

Intentional Felony and Conspiracy

Our Revised Penal Code belongs to the classical school of thought. The classical theory posits that a 105 

human person is essentially a moral creature with an absolute free will to choose between good and
evil. It asserts that one should only be adjudged or held accountable for wrongful acts so long as free
106 

will appears unimpaired. The basic postulate of the classical penal system is that humans are rational
107 

and calculating beings who guide their actions with reference to the principles of pleasure and
pain. They refrain from criminal acts if threatened with punishment sufficient to cancel the hope of
108 

possible gain or advantage in committing the crime. Here, criminal liability is thus based on the free will
109 

and moral blame of the actor. The identity of mens rea – defined as a guilty mind, a guilty or wrongful
110 

purpose or criminal intent – is the predominant consideration. Thus, it is not enough to do what the law
111 

prohibits. In order for an intentional felony to exist, it is necessary that the act be committed by means
112 

of dolo or "malice." 113

The term "dolo" or "malice" is a complex idea involving the elements of freedom, intelligence, and
intent. The first element, freedom, refers to an act done with deliberation and with power to choose
114 

between two things. The second element, intelligence, concerns the ability to determine the morality of
115 

human acts, as well as the capacity to distinguish between a licit and an illicit act. The last element, 116 

intent, involves an aim or a determination to do a certain act. 117

The element of intent – on which this Court shall focus – is described as the state of mind
accompanying an act, especially a forbidden act. It refers to the purpose of the mind and the resolve
118 

with which a person proceeds. It does not refer to mere will, for the latter pertains to the act, while
119 

intent concerns the result of the act. While motive is the "moving power" that impels one to action for a
120 

definite result, intent is the "purpose" of using a particular means to produce the result. On the other 121 

hand, the term "felonious" means, inter alia, malicious, villainous, and/or proceeding from an evil heart
or purpose. With these elements taken together, the requirement of intent in intentional felony must
122 

refer to malicious intent, which is a vicious and malevolent state of mind accompanying a forbidden act.
Stated otherwise, intentional felony requires the existence of dolus malus – that the act or omission be
done "willfully," "maliciously," "with deliberate evil intent," and "with malice aforethought." The maxim is 123 

actus non facit reum, nisi mens sit rea – a crime is not committed if the mind of the person performing
the act complained of is innocent. As is required of the other elements of a felony, the existence of
124 

malicious intent must be proven beyond reasonable doubt. 125

In turn, the existence of malicious intent is necessary in order for conspiracy to attach. Article 8 of the
Revised Penal Code – which provides that "conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit it" – is to be interpreted to refer
only to felonies committed by means of dolo or malice. The phrase "coming to an agreement" connotes
the existence of a prefaced "intent" to cause injury to another, an element present only in intentional
felonies. In culpable felonies or criminal negligence, the injury inflicted on another is unintentional, the
wrong done being simply the result of an act performed without malice or criminal design. Here, a 126 

person performs an initial lawful deed; however, due to negligence, imprudence, lack of foresight, or
lack of skill, the deed results in a wrongful act. Verily, a deliberate intent to do an unlawful act, which is
127 

a requisite in conspiracy, is inconsistent with the idea of a felony committed by means of culpa. 128
The presence of an initial malicious intent to commit a felony is thus a vital ingredient in establishing the
commission of the intentional felony of homicide. Being mala in se, the felony of homicide requires the
129 

existence of malice or dolo immediately before or simultaneously with the infliction of injuries. Intent to
130  131 

kill – or animus interficendi – cannot and should not be inferred, unless there is proof beyond
reasonable doubt of such intent. Furthermore, the victim’s death must not have been the product of
132 

accident, natural cause, or suicide. If death resulted from an act executed without malice or criminal
133 

intent – but with lack of foresight, carelessness, or negligence – the act must be qualified as reckless or
simple negligence or imprudence resulting in homicide. 134

Hazing and other forms of initiation rites

The notion of hazing is not a recent development in our society. It is said that, throughout history, 135 

hazing in some form or another has been associated with organizations ranging from military groups to
indigenous tribes. Some say that elements of hazing can be traced back to the Middle Ages, during
136 

which new students who enrolled in European universities worked as servants for upperclassmen. It is 137 

believed that the concept of hazing is rooted in ancient Greece, where young men recruited into the 138 

military were tested with pain or challenged to demonstrate the limits of their loyalty and to prepare the
recruits for battle. Modern fraternities and sororities espouse some connection to these values of
139 

ancient Greek civilization. According to a scholar, this concept lends historical legitimacy to a
140 

"tradition" or "ritual" whereby prospective members are asked to prove their worthiness and loyalty to
the organization in which they seek to attain membership through hazing. 141

Thus, it is said that in the Greek fraternity system, custom requires a student wishing to join an
organization to receive an invitation in order to be a neophyte for a particular chapter. The neophyte 142 

period is usually one to two semesters long. During the "program," neophytes are required to interview
143 

and to get to know the active members of the chapter; to learn chapter history; to understand the
principles of the organization; to maintain a specified grade point average; to participate in the
organization’s activities; and to show dignity and respect for their fellow neophytes, the organization,
and its active and alumni members. Some chapters require the initiation activities for a recruit to
144 

involve hazing acts during the entire neophyte stage. 145

Hazing, as commonly understood, involves an initiation rite or ritual that serves as prerequisite for
admission to an organization. In hazing, the "recruit," "pledge," "neophyte," "initiate," "applicant" – or
146 

any other term by which the organization may refer to such a person – is generally placed in
embarrassing or humiliating situations, like being forced to do menial, silly, foolish, or other similar tasks
or activities. It encompasses different forms of conduct that humiliate, degrade, abuse, or physically
147 

endanger those who desire membership in the organization. These acts usually involve physical or 148 

psychological suffering or injury. 149

The concept of initiation rites in the country is nothing new. In fact, more than a century ago, our
national hero – Andres Bonifacio – organized a secret society named Kataastaasan
Kagalanggalangang Katipunan ng mga Anak ng Bayan (The Highest and Most Venerable Association
of the Sons and Daughters of the Nation). The Katipunan, or KKK, started as a small confraternity
150 

believed to be inspired by European Freemasonry, as well as by confraternities or sodalities approved

by the Catholic Church. The Katipunan’s ideology was brought home to each member through the
151 

society’s initiation ritual. It is said that initiates were brought to a dark room, lit by a single point of
152 

illumination, and were asked a series of questions to determine their fitness, loyalty, courage,
and resolve. They were made to go through vigorous trials such as "pagsuot sa isang lungga"
153 

or "[pagtalon] sa balon." It would seem that they were also made to withstand the blow of
154 

"pangherong bakal sa pisngi" and to endure a "matalas na punyal." As a final step in the ritual, 155 

the neophyte Katipunero was made to sign membership papers with the his own blood. 156

It is believed that the Greek fraternity system was transported by the Americans to the Philippines in the
late 19th century. As can be seen in the following instances, the manner of hazing in the United States
was jarringly similar to that inflicted by the Aquila Fraternity on Lenny Villa.

Early in 1865, upperclassmen at West Point Academy forced the fourth classmen to do exhausting
physical exercises that sometimes resulted in permanent physical damage; to eat or drink unpalatable
foods; and in various ways to humiliate themselves. In 1901, General Douglas MacArthur got involved
157 

in a congressional investigation of hazing at the academy during his second year at West Point. 158

In Easler v. Hejaz Temple of Greenville, decided in 1985, the candidate-victim was injured during the
shriner’s hazing event, which was part of the initiation ceremonies for Hejaz membership. The ritual 159 

involved what was known as the "mattress-rotating barrel trick." It required each candidate to slide 160 

down an eight to nine-foot-high metal board onto connected mattresses leading to a barrel, over which
the candidate was required to climb. Members of Hejaz would stand on each side of the mattresses
161 

and barrel and fun-paddle candidates en route to the barrel. 162

In a video footage taken in 1991, U.S. Marine paratroopers in Camp Lejeune, North Carolina, were
seen performing a ceremony in which they pinned paratrooper jump wings directly onto the neophyte
paratroopers’ chests. The victims were shown writhing and crying out in pain as others pounded the
163 

spiked medals through the shirts and into the chests of the victims. 164

In State v. Allen, decided in 1995, the Southeast Missouri State University chapter of Kappa Alpha Psi
invited male students to enter into a pledgeship program. The fraternity members subjected the
165 

pledges to repeated physical abuse including repeated, open-hand strikes at the nape, the chest, and
the back; caning of the bare soles of the feet and buttocks; blows to the back with the use of a heavy
book and a cookie sheet while the pledges were on their hands and knees; various kicks and punches
to the body; and "body slamming," an activity in which active members of the fraternity lifted pledges up
in the air and dropped them to the ground. The fraternity members then put the pledges through a
166 

seven-station circle of physical abuse. 167

In Ex Parte Barran, decided in 1998, the pledge-victim went through hazing by fraternity members of
the Kappa Alpha Order at the Auburn University in Alabama. The hazing included the following: (1)
168 

having to dig a ditch and jump into it after it had been filled with water, urine, feces, dinner leftovers, and
vomit; (2) receiving paddlings on the buttocks; (3) being pushed and kicked, often onto walls or into pits
and trash cans; (4) eating foods like peppers, hot sauce, butter, and "yerks" (a mixture of hot sauce,
mayonnaise, butter, beans, and other items); (5) doing chores for the fraternity and its members, such
as cleaning the fraternity house and yard, being designated as driver, and running errands; (6)
appearing regularly at 2 a.m. "meetings," during which the pledges would be hazed for a couple of
hours; and (7) "running the gauntlet," during which the pledges were pushed, kicked, and hit as they ran
down a hallway and descended down a flight of stairs. 169

In Lloyd v. Alpha Phi Alpha Fraternity, decided in 1999, the victim – Sylvester Lloyd – was accepted to
pledge at the Cornell University chapter of the Alpha Phi Alpha Fraternity. He participated in initiation 170 

activities, which included various forms of physical beatings and torture, psychological coercion and
embarrassment. 171

In Kenner v. Kappa Alpha Psi Fraternity, decided in 2002, the initiate-victim suffered injuries from
hazing activities during the fraternity’s initiation rites. Kenner and the other initiates went through
172 

psychological and physical hazing, including being paddled on the buttocks for more than 200 times. 173

In Morton v. State, Marcus Jones – a university student in Florida – sought initiation into the campus
chapter of the Kappa Alpha Psi Fraternity during the 2005-06 academic year. The pledge’s efforts to 174 

join the fraternity culminated in a series of initiation rituals conducted in four nights. Jones, together with
other candidates, was blindfolded, verbally harassed, and caned on his face and buttocks. In these 175 

rituals described as "preliminaries," which lasted for two evenings, he received approximately 60
canings on his buttocks. During the last two days of the hazing, the rituals intensified. The pledges
176  177 

sustained roughly 210 cane strikes during the four-night initiation. Jones and several other candidates
178 

passed out. 179

The purported raison d’être behind hazing practices is the proverbial "birth by fire," through which the
pledge who has successfully withstood the hazing proves his or her worth. Some organizations even 180 

believe that hazing is the path to enlightenment. It is said that this process enables the organization to
establish unity among the pledges and, hence, reinforces and ensures the future of the
organization. Alleged benefits of joining include leadership opportunities; improved academic
181 

performance; higher self-esteem; professional networking opportunities; and the esprit d’corp
associated with close, almost filial, friendship and common cause. 182

Anti-Hazing laws in the U.S.

The first hazing statute in the U.S. appeared in 1874 in response to hazing in the military. The hazing 183 

of recruits and plebes in the armed services was so prevalent that Congress prohibited all forms of
military hazing, harmful or not. It was not until 1901 that Illinois passed the first state anti-hazing law,
184 

criminalizing conduct "whereby any one sustains an injury to his [or her] person therefrom." 185

However, it was not until the 1980s and 1990s, due in large part to the efforts of the Committee to Halt
Useless College Killings and other similar organizations, that states increasingly began to enact
legislation prohibiting and/or criminalizing hazing. As of 2008, all but six states had enacted criminal or
186 

civil statutes proscribing hazing. Most anti-hazing laws in the U.S. treat hazing as a misdemeanor and
187 

carry relatively light consequences for even the most severe situations. Only a few states with anti- 188 

hazing laws consider hazing as a felony in case death or great bodily harm occurs. 189

Under the laws of Illinois, hazing is a Class A misdemeanor, except hazing that results in death or great
bodily harm, which is a Class 4 felony. In a Class 4 felony, a sentence of imprisonment shall be for a
190 

term of not less than one year and not more than three years. Indiana criminal law provides that a
191 
person who recklessly, knowingly, or intentionally performs hazing that results in serious bodily injury to
a person commits criminal recklessness, a Class D felony. 192

The offense becomes a Class C felony if committed by means of a deadly weapon. As an element of a 193 

Class C felony – criminal recklessness – resulting in serious bodily injury, death falls under the category
of "serious bodily injury." A person who commits a Class C felony is imprisoned for a fixed term of
194 

between two (2) and eight (8) years, with the advisory sentence being four (4) years. Pursuant to 195 

Missouri law, hazing is a Class A misdemeanor, unless the act creates a substantial risk to the life of
the student or prospective member, in which case it becomes a Class C felony. A Class C felony 196 

provides for an imprisonment term not to exceed seven years. 197

In Texas, hazing that causes the death of another is a state jail felony. An individual adjudged guilty of
198 

a state jail felony is punished by confinement in a state jail for any term of not more than two years or
not less than 180 days. Under Utah law, if hazing results in serious bodily injury, the hazer is guilty of a
199 

third-degree felony. A person who has been convicted of a third-degree felony may be sentenced to
200 

imprisonment for a term not to exceed five years. West Virginia law provides that if the act of hazing
201 

would otherwise be deemed a felony, the hazer may be found guilty thereof and subject to penalties
provided therefor. In Wisconsin, a person is guilty of a Class G felony if hazing results in the death of
202 

another. A Class G felony carries a fine not to exceed $25,000 or imprisonment not to exceed 10
203 

years, or both. 204

In certain states in the U.S., victims of hazing were left with limited remedies, as there was no hazing
statute. This situation was exemplified in Ballou v. Sigma Nu General Fraternity, wherein Barry
205 

Ballou’s family resorted to a civil action for wrongful death, since there was no anti-hazing statute in
South Carolina until 1994. 206

The existence of animus interficendi or intent to kill not proven beyond reasonable doubt

The presence of an ex ante situation – in this case, fraternity initiation rites – does not automatically
amount to the absence of malicious intent or dolus malus. If it is proven beyond reasonable doubt that
the perpetrators were equipped with a guilty mind – whether or not there is a contextual background or
factual premise – they are still criminally liable for intentional felony.

The trial court, the CA, and the Solicitor General are all in agreement that – with the exception of
Villareal and Dizon – accused Tecson, Ama, Almeda, and Bantug did not have the animus interficendi
or intent to kill Lenny Villa or the other neophytes. We shall no longer disturb this finding.

As regards Villareal and Dizon, the CA modified the Decision of the trial court and found that the two
accused had the animus interficendi or intent to kill Lenny Villa, not merely to inflict physical injuries on
him. It justified its finding of homicide against Dizon by holding that he had apparently been motivated
by ill will while beating up Villa. Dizon kept repeating that his father’s parking space had been stolen by
the victim’s father. As to Villareal, the court said that the accused suspected the family of Bienvenido
207 

Marquez, one of the neophytes, to have had a hand in the death of Villareal’s brother. The CA then 208 

ruled as follows:

The two had their own axes to grind against Villa and Marquez. It was very clear that they acted with
evil and criminal intent. The evidence on this matter is unrebutted and so for the death of Villa,
appellants Dizon and Villareal must and should face the consequence of their acts, that is, to be held
liable for the crime of homicide. (Emphasis supplied)
209 

We cannot subscribe to this conclusion.

The appellate court relied mainly on the testimony of Bienvenido Marquez to determine the existence of
animus interficendi. For a full appreciation of the context in which the supposed utterances were made,
the Court deems it necessary to reproduce the relevant portions of witness Marquez’s testimony:

Witness We were brought up into [Michael Musngi’s] room and we were briefed as to what to expect
during the next three days and we were told the members of the fraternity and their batch and we were
also told about the fraternity song, sir.

x x x           x x x          x x x

Witness We were escorted out of [Michael Musngi’s] house and we were made to ride a van and we
were brought to another place in Kalookan City which I later found to be the place of Mariano Almeda,
sir.

x x x           x x x          x x x
Witness Upon arrival, we were instructed to bow our head down and to link our arms and then the driver
of the van and other members of the Aquilans who were inside left us inside the van, sir.

x x x           x x x          x x x

Witness We heard voices shouted outside the van to the effect, "Villa akin ka," "Asuncion Patay ka" and
the people outside pound the van, rock the van, sir.

Atty. Tadiar Will you please recall in what tone of voice and how strong a voice these remarks uttered
upon your arrival?

Witness Some were almost shouting, you could feel the sense of excitement in their voices, sir.

x x x           x x x          x x x

Atty. Tadiar During all these times that the van was being rocked through and through, what were the
voices or utterances that you heard?

Witness "Villa akin ka," "Asuncion patay ka," "Recinto patay ka sa amin," etc., sir.

Atty. Tadiar And those utterances and threats, how long did they continue during the rocking of the van
which lasted for 5 minutes?

x x x           x x x          x x x

Witness Even after they rocked the van, we still kept on hearing voices, sir.

x x x           x x x          x x x

Atty. Tadiar During the time that this rounds [of physical beating] were being inflicted, was there any
utterances by anybody?

Witness Yes sir. Some were piercing, some were discouraging, and some were encouraging others
who were pounding and beating us, it was just like a fiesta atmosphere, actually some of them enjoyed
looking us being pounded, sir.

Atty. Tadiar Do you recall what were those voices that you heard?

Witness One particular utterance always said was, they asked us whether "matigas pa yan, kayang-
kaya pa niyan."

Atty. Tadiar Do you know who in particular uttered those particular words that you quote?

Witness I cannot particularly point to because there were utterances simultaneously, I could not really
pin point who uttered those words, sir.

x x x           x x x          x x x

Atty. Tadiar Were there any utterances that you heard during the conduct of this Bicol Express?

Witness Yes, sir I heard utterances.

Atty. Tadiar Will you please recall to this Honorable Court what were the utterances that you
remember?

Witness For example, one person particularly Boyet Dizon stepped on my thigh, he would say that and I
quote "ito, yung pamilya nito ay pinapatay yung kapatid ko," so that would in turn sort of justifying him in
inflicting more serious pain on me. So instead of just walking, he would jump on my thighs and then
after on was Lenny Villa. He was saying to the effect that "this guy, his father stole the parking space of
my father," sir. So, that’s why he inflicted more pain on Villa and that went on, sir.

Atty. Tadiar And you were referring to which particular accused?

Witness Boyet Dizon, sir.

Atty. Tadiar When Boyet Dizon at that particular time was accusing you of having your family have his
brother killed, what was your response?
Witness Of course, I knew sir that it was not true and that he was just making it up sir. So he said that I
knew nothing of that incident. However, he just in fact after the Bicol Express, he kept on uttering those
words/statements so that it would in turn justify him and to give me harder blows, sir.

x x x           x x x          x x x

Atty. Tadiar You mentioned about Dizon in particular mentioning that Lenny Villa’s father stole the
parking space allotted for his father, do you recall who were within hearing distance when that utterance
was made?

Witness Yes, sir. All of the neophytes heard that utterance, sir.

x x x           x x x          x x x

Witness There were different times made this accusation so there were different people who heard from
time to time, sir.

x x x           x x x          x x x

Atty. Tadiar Can you tell the Honorable Court when was the next accusation against Lenny Villa’s father
was made?

Witness When we were line up against the wall, Boyet Dizon came near to us and when Lenny Villa’s
turn, I heard him uttered those statements, sir.

Atty. Tadiar What happened after he made this accusation to Lenny Villa’s father?

Witness He continued to inflict blows on Lenny Villa.

Atty. Tadiar How were those blows inflicted?

Witness There were slaps and he knelt on Lenny Villa’s thighs and sometime he stand up and he
kicked his thighs and sometimes jumped at it, sir.

x x x           x x x          x x x

Atty. Tadiar We would go on to the second day but not right now. You mentioned also that accusations
made by Dizon "you or your family had his brother killed," can you inform this Honorable Court what
exactly were the accusations that were charged against you while inflicting blows upon you in
particular?

Witness While he was inflicting blows upon me, he told me in particular if I knew that his family who had
his brother killed, and he said that his brother was an NPA, sir so I knew that it was just a story that he
made up and I said that I knew nothing about it and he continued inflicting blows on me, sir. And
another incident was when a talk was being given, Dizon was on another part of the pelota court and I
was sort of looking and we saw that he was drinking beer, and he said and I quote: "Marquez, Marquez,
ano ang tinitingin-tingin mo diyan, ikaw yung pamilya mo ang nagpapatay sa aking kapatid, yari ka sa
akin," sir.

Atty. Tadiar What else?

Witness That’s all, sir.

Atty. Tadiar And on that first night of February 8, 1991, did ever a doctor or a physician came around as
promised to you earlier?

Witness No, sir. (Emphasis supplied)

210 

On cross-examination, witness Bienvenido Marquez testified thus:

Judge Purisima When you testified on direct examination Mr. Marquez, have you stated that there was
a briefing that was conducted immediately before your initiation as regards to what to expect during the
initiation, did I hear you right?

Witness Yes, sir.

Judge Purisima Who did the briefing?

Witness Mr. Michael Musngi, sir and Nelson Victorino.

Judge Purisima Will you kindly tell the Honorable Court what they told you to expect during the
initiation?

Witness They told us at the time we would be brought to a particular place, we would be mocked at, sir.

Judge Purisima So, you expected to be mocked at, ridiculed, humiliated etc., and the likes?

Witness Yes, sir.

Judge Purisima You were also told beforehand that there would be physical contact?

Witness Yes, sir at the briefing.

x x x           x x x          x x x

Witness Yes, sir, because they informed that we could immediately go back to school. All the bruises
would be limited to our arms and legs, sir. So, if we wear the regular school uniforms like long sleeves,
it would be covered actually so we have no thinking that our face would be slapped, sir.

Judge Purisima So, you mean to say that beforehand that you would have bruises on your body but that
will be covered?

Witness Yes, sir.

JudgePurisima So, what kind of physical contact or implements that you expect that would create
bruises to your body?

Witness At that point I am already sure that there would be hitting by a paddling or paddle, sir.

x x x           x x x          x x x

Judge Purisima Now, will you admit Mr. Marquez that much of the initiation procedures is psychological
in nature?

Witness Combination, sir. (Emphasis supplied)

211 

x x x           x x x          x x x

Atty. Jimenez The initiation that was conducted did not consist only of physical initiation, meaning body
contact, is that correct?

Witness Yes, sir.

Atty. Jimenez Part of the initiation was the so-called psychological initiation, correct?

Witness Yes, sir.

Atty. Jimenez And this consisted of making you believe of things calculated to terrify you, scare you,
correct?

Witness Yes, sir.

Atty. Jimenez In other words, the initiating masters made belief situation intended to, I repeat, terrify
you, frighten you, scare you into perhaps quitting the initiation, is this correct?

Witness Sometimes sir, yes.

Atty. Jimenez You said on direct that while Mr. Dizon was initiating you, he said or he was supposed to
have said according to you that your family were responsible for the killing of his brother who was an
NPA, do you remember saying that?

Witness Yes, sir.

Atty. Jimenez You also said in connection with that statement said to you by Dizon that you did not
believe him because that is not true, correct?
Witness Yes, sir.

Atty. Jimenez In other words, he was only psychologizing you perhaps, the purpose as I have
mentioned before, terrifying you, scaring you or frightening you into quitting the initiation, this is correct?

Witness No, sir, perhaps it is one but the main reason, I think, why he was saying those things was
because he wanted to inflict injury.

Atty. Jimenez He did not tell that to you. That is your only perception, correct?

Witness No, sir, because at one point, while he was telling this to Villareal, he was hitting me.

Atty. Jimenez But did you not say earlier that you [were] subjected to the same forms of initiation by all
the initiating masters? You said that earlier, right?

Witness Yes, sir.

Atty. Jimenez Are you saying also that the others who jumped on you or kicked you said something
similar as was told to you by Mr. Dizon?

Witness No, sir.

Atty. Jimenez But the fact remains that in the Bicol Express for instance, the masters would run on your
thighs, right?

Witness Yes, sir.

Atty. Jimenez This was the regular procedure that was followed by the initiating masters not only on you
but also on the other neophytes?

Witness Yes, sir.

Atty. Jimenez In other words, it is fair to say that whatever forms of initiation was administered by one
master, was also administered by one master on a neophyte, was also administered by another master
on the other neophyte, this is correct?

Witness Yes, sir. (Emphasis supplied)

212 

According to the Solicitor General himself, the ill motives attributed by the CA to Dizon and Villareal
were "baseless," since the statements of the accused were "just part of the psychological initiation
213 

calculated to instill fear on the part of the neophytes"; that "[t]here is no element of truth in it as testified
by Bienvenido Marquez"; and that the "harsh words uttered by Petitioner and Villareal are part of
‘tradition’ concurred and accepted by all the fraternity members during their initiation rites." 214

We agree with the Solicitor General.

The foregoing testimony of witness Marquez reveals a glaring mistake of substantial proportion on the
part of the CA – it mistook the utterances of Dizon for those of Villareal. Such inaccuracy cannot be
tolerated, especially because it was the CA’s primary basis for finding that Villarreal had the intent to kill
Lenny Villa, thereby making Villareal guilty of the intentional felony of homicide. To repeat, according to
Bienvenido Marquez’s testimony, as reproduced above, it was Dizon who uttered both "accusations"
against Villa and Marquez; Villareal had no participation whatsoever in the specific threats referred to by
the CA. It was "Boyet Dizon [who] stepped on [Marquez’s] thigh"; and who told witness Marquez, "[I]to,
yung pamilya nito ay pinapatay yung kapatid ko." It was also Dizon who jumped on Villa’s thighs while
saying, "[T]his guy, his father stole the parking space of my father." With the testimony clarified, we find
that the CA had no basis for concluding the existence of intent to kill based solely thereon.

As to the existence of animus interficendi on the part of Dizon, we refer to the entire factual milieu and
contextual premise of the incident to fully appreciate and understand the testimony of witness Marquez.
At the outset, the neophytes were briefed that they would be subjected to psychological pressure in
order to scare them. They knew that they would be mocked, ridiculed, and intimidated. They heard
fraternity members shout, "Patay ka, Recinto," "Yari ka, Recinto," "Villa, akin ka," "Asuncion, gulpi ka,"
"Putang ina mo, Asuncion," "Putang ina nyo, patay kayo sa amin," or some other words to that
effect. While beating the neophytes, Dizon accused Marquez of the death of the former’s purported
215 

NPA brother, and then blamed Lenny Villa’s father for stealing the parking space of Dizon’s father.
According to the Solicitor General, these statements, including those of the accused Dizon, were all part
of the psychological initiation employed by the Aquila Fraternity. 216
Thus, to our understanding, accused Dizon’s way of inflicting psychological pressure was through
hurling make-believe accusations at the initiates. He concocted the fictitious stories, so that he could
"justify" giving the neophytes harder blows, all in the context of fraternity initiation and role playing. Even
one of the neophytes admitted that the accusations were untrue and made-up.

The infliction of psychological pressure is not unusual in the conduct of hazing. In fact, during the
Senate deliberations on the then proposed Anti-Hazing Law, former Senator Lina spoke as follows:

Senator Lina. -- so as to capture the intent that we conveyed during the period of interpellations on why
we included the phrase "or psychological pain and suffering."

x x x           x x x          x x x

So that if no direct physical harm is inflicted upon the neophyte or the recruit but the recruit or neophyte
is made to undergo certain acts which I already described yesterday, like playing the Russian roulette
extensively to test the readiness and the willingness of the neophyte or recruit to continue his desire to
be a member of the fraternity, sorority or similar organization or playing and putting a noose on the neck
of the neophyte or recruit, making the recruit or neophyte stand on the ledge of the fourth floor of the
building facing outside, asking him to jump outside after making him turn around several times but the
reality is that he will be made to jump towards the inside portion of the building – these are the mental
or psychological tests that are resorted to by these organizations, sororities or fraternities. The doctors
who appeared during the public hearing testified that such acts can result in some mental aberration,
that they can even lead to psychosis, neurosis or insanity. This is what we want to prevent. (Emphasis
217 

supplied)

Thus, without proof beyond reasonable doubt, Dizon’s behavior must not be automatically viewed as
evidence of a genuine, evil motivation to kill Lenny Villa. Rather, it must be taken within the context of
the fraternity’s psychological initiation. This Court points out that it was not even established whether
the fathers of Dizon and Villa really had any familiarity with each other as would lend credence to the
veracity of Dizon’s threats. The testimony of Lenny’s co-neophyte, Marquez, only confirmed this view.
According to Marquez, he "knew it was not true and that [Dizon] was just making it up…." Even the trial
218 

court did not give weight to the utterances of Dizon as constituting intent to kill: "[T]he cumulative acts of
all the accused were not directed toward killing Villa, but merely to inflict physical harm as part of the
fraternity initiation rites x x x." The Solicitor General shares the same view.
219 

Verily, we cannot sustain the CA in finding the accused Dizon guilty of homicide under Article 249 of the
Revised Penal Code on the basis of the existence of intent to kill. Animus interficendi cannot and should
not be inferred unless there is proof beyond reasonable doubt of such intent. Instead, we adopt and
220 

reinstate the finding of the trial court in part, insofar as it ruled that none of the fraternity members had
the specific intent to kill Lenny Villa.
221

The existence of animus iniuriandi or malicious intent to injure not proven beyond reasonable doubt

The Solicitor General argues, instead, that there was an intent to inflict physical injuries on Lenny Villa.
Echoing the Decision of the trial court, the Solicitor General then posits that since all of the accused
fraternity members conspired to inflict physical injuries on Lenny Villa and death ensued, all of them
should be liable for the crime of homicide pursuant to Article 4(1) of the Revised Penal Code.

In order to be found guilty of any of the felonious acts under Articles 262 to 266 of the Revised Penal
Code, the employment of physical injuries must be coupled with dolus malus. As an act that is mala in
222 

se, the existence of malicious intent is fundamental, since injury arises from the mental state of the
wrongdoer – iniuria ex affectu facientis consistat. If there is no criminal intent, the accused cannot be
found guilty of an intentional felony. Thus, in case of physical injuries under the Revised Penal Code,
there must be a specific animus iniuriandi or malicious intention to do wrong against the physical
integrity or well-being of a person, so as to incapacitate and deprive the victim of certain bodily
functions. Without proof beyond reasonable doubt of the required animus iniuriandi, the overt act of
inflicting physical injuries per se merely satisfies the elements of freedom and intelligence in an
intentional felony. The commission of the act does not, in itself, make a man guilty unless his intentions
are.223

Thus, we have ruled in a number of instances that the mere infliction of physical injuries, absent
224 

malicious intent, does not make a person automatically liable for an intentional felony. In Bagajo v.
People, the accused teacher, using a bamboo stick, whipped one of her students behind her legs and
225 

thighs as a form of discipline. The student suffered lesions and bruises from the corporal punishment. In
reversing the trial court’s finding of criminal liability for slight physical injuries, this Court stated thus:
"Independently of any civil or administrative responsibility … [w]e are persuaded that she did not do
what she had done with criminal intent … the means she actually used was moderate and that she was
not motivated by ill-will, hatred or any malevolent intent." Considering the applicable laws, we then ruled
that "as a matter of law, petitioner did not incur any criminal liability for her act of whipping her pupil." In
People v. Carmen, the accused members of the religious group known as the Missionaries of Our
226 

Lady of Fatima – under the guise of a "ritual or treatment" – plunged the head of the victim into a barrel
of water, banged his head against a bench, pounded his chest with fists, and stabbed him on the side
with a kitchen knife, in order to cure him of "nervous breakdown" by expelling through those means the
bad spirits possessing him. The collective acts of the group caused the death of the victim. Since
malicious intent was not proven, we reversed the trial court’s finding of liability for murder under Article
4 of the Revised Penal Code and instead ruled that the accused should be held criminally liable for
reckless imprudence resulting in homicide under Article 365 thereof.

Indeed, the threshold question is whether the accused’s initial acts of inflicting physical pain on the
neophytes were attended by animus iniuriandi amounting to a felonious act punishable under the
Revised Penal Code, thereby making it subject to Article 4(1) thereof. In People v. Regato, we ruled
that malicious intent must be judged by the action, conduct, and external acts of the accused. What 227 

persons do is the best index of their intention. We have also ruled that the method employed, the kind
228 

of weapon used, and the parts of the body on which the injury was inflicted may be determinative of the
intent of the perpetrator. The Court shall thus examine the whole contextual background surrounding
229 

the death of Lenny Villa.

Lenny died during Aquila’s fraternity initiation rites. The night before the commencement of the rites,
they were briefed on what to expect. They were told that there would be physical beatings, that the
whole event would last for three days, and that they could quit anytime. On their first night, they were
subjected to "traditional" initiation rites, including the "Indian Run," "Bicol Express," "Rounds," and the
"Auxies’ Privilege Round." The beatings were predominantly directed at the neophytes’ arms and legs.

In the morning of their second day of initiation, they were made to present comic plays and to play
rough basketball. They were also required to memorize and recite the Aquila Fraternity’s principles.
Late in the afternoon, they were once again subjected to "traditional" initiation rituals. When the rituals
were officially reopened on the insistence of Dizon and Villareal, the neophytes were subjected to
another "traditional" ritual – paddling by the fraternity.

During the whole initiation rites, auxiliaries were assigned to the neophytes. The auxiliaries protected
the neophytes by functioning as human barriers and shielding them from those who were designated to
inflict physical and psychological pain on the initiates. It was their regular duty to stop foul or excessive
230 

physical blows; to help the neophytes to "pump" their legs in order that their blood would circulate; to
facilitate a rest interval after every physical activity or "round"; to serve food and water; to tell jokes; to
coach the initiates; and to give them whatever they needed.

These rituals were performed with Lenny’s consent. A few days before the "rites," he asked both his
231 

parents for permission to join the Aquila Fraternity. His father knew that Lenny would go through an
232 

initiation process and would be gone for three days. The CA found as follows:
233 

It is worth pointing out that the neophytes willingly and voluntarily consented to undergo physical
initiation and hazing. As can be gleaned from the narration of facts, they voluntarily agreed to join the
initiation rites to become members of the Aquila Legis Fraternity. Prior to the initiation, they were given
briefings on what to expect. It is of common knowledge that before admission in a fraternity, the
neophytes will undergo a rite of passage. Thus, they were made aware that traditional methods such as
mocking, psychological tests and physical punishment would take place. They knew that the initiation
would involve beatings and other forms of hazing. They were also told of their right and opportunity to
quit at any time they wanted to. In fact, prosecution witness Navera testified that accused Tecson told
him that "after a week, you can already play basketball." Prosecution witness Marquez for his part,
admitted that he knew that the initiates would be hit "in the arms and legs," that a wooden paddle would
be used to hit them and that he expected bruises on his arms and legs…. Indeed, there can be no
fraternity initiation without consenting neophytes. (Emphasis supplied)
234 

Even after going through Aquila’s grueling traditional rituals during the first day, Lenny continued his
participation and finished the second day of initiation.

Based on the foregoing contextual background, and absent further proof showing clear malicious intent,
we are constrained to rule that the specific animus iniuriandi was not present in this case. Even if the
specific acts of punching, kicking, paddling, and other modes of inflicting physical pain were done
voluntarily, freely, and with intelligence, thereby satisfying the elements of freedom and intelligence in
the felony of physical injuries, the fundamental ingredient of criminal intent was not proven beyond
reasonable doubt. On the contrary, all that was proven was that the acts were done pursuant to
tradition. Although the additional "rounds" on the second night were held upon the insistence of Villareal
and Dizon, the initiations were officially reopened with the consent of the head of the initiation rites; and
the accused fraternity members still participated in the rituals, including the paddling, which were
performed pursuant to tradition. Other than the paddle, no other "weapon" was used to inflict injuries on
Lenny. The targeted body parts were predominantly the legs and the arms. The designation of roles,
including the role of auxiliaries, which were assigned for the specific purpose of lending assistance to
and taking care of the neophytes during the initiation rites, further belied the presence of malicious
intent. All those who wished to join the fraternity went through the same process of "traditional"
initiation; there is no proof that Lenny Villa was specifically targeted or given a different treatment. We
stress that Congress itself recognized that hazing is uniquely different from common crimes. The 235 

totality of the circumstances must therefore be taken into consideration.

The underlying context and motive in which the infliction of physical injuries was rooted may also be
determined by Lenny’s continued participation in the initiation and consent to the method used even
after the first day. The following discussion of the framers of the 1995 Anti-Hazing Law is enlightening:

Senator Guingona. Most of these acts, if not all, are already punished under the Revised Penal Code.

Senator Lina. That is correct, Mr. President.

Senator Guingona. If hazing is done at present and it results in death, the charge would be murder or
homicide.

Senator Lina. That is correct, Mr. President.

Senator Guingona. If it does not result in death, it may be frustrated homicide or serious physical
injuries.

Senator Lina. That is correct, Mr. President.

Senator Guingona. Or, if the person who commits sexual abuse does so it can be penalized under rape
or acts of lasciviousness.

Senator Lina. That is correct, Mr. President.

Senator Guingona. So, what is the rationale for making a new offense under this definition of the crime
of hazing?

Senator Lina. To discourage persons or group of persons either composing a sorority, fraternity or any
association from making this requirement of initiation that has already resulted in these specific acts or
results, Mr. President.

That is the main rationale. We want to send a strong signal across the land that no group or association
can require the act of physical initiation before a person can become a member without being held
criminally liable.

x x x           x x x          x x x

Senator Guingona. Yes, but what would be the rationale for that imposition? Because the distinguished
Sponsor has said that he is not punishing a mere organization, he is not seeking the punishment of an
initiation into a club or organization, he is seeking the punishment of certain acts that resulted in death,
et cetera as a result of hazing which are already covered crimes.

The penalty is increased in one, because we would like to discourage hazing, abusive hazing, but it
may be a legitimate defense for invoking two or more charges or offenses, because these very same
acts are already punishable under the Revised Penal Code.

That is my difficulty, Mr. President.

Senator Lina. x x x

Another point, Mr. President, is this, and this is a very telling difference: When a person or group of
persons resort to hazing as a requirement for gaining entry into an organization, the intent to commit a
wrong is not visible or is not present, Mr. President. Whereas, in these specific crimes, Mr. President,
let us say there is death or there is homicide, mutilation, if one files a case, then the intention to commit
a wrong has to be proven. But if the crime of hazing is the basis, what is important is the result from the
act of hazing.

To me, that is the basic difference and that is what will prevent or deter the sororities or fraternities; that
they should really shun this activity called "hazing." Because, initially, these fraternities or sororities do
not even consider having a neophyte killed or maimed or that acts of lasciviousness are even
committed initially, Mr. President.

So, what we want to discourage is the so-called initial innocent act. That is why there is need to institute
this kind of hazing. Ganiyan po ang nangyari. Ang fraternity o ang sorority ay magre-recruit. Wala
talaga silang intensiyong makamatay. Hindi ko na babanggitin at buhay pa iyong kaso. Pero dito sa
anim o pito na namatay nitong nakaraang taon, walang intensiyong patayin talaga iyong neophyte. So,
kung maghihintay pa tayo, na saka lamang natin isasakdal ng murder kung namatay na, ay after the
fact ho iyon. Pero, kung sasabihin natin sa mga kabataan na: "Huwag ninyong gagawin iyong hazing.
Iyan ay kasalanan at kung mamatay diyan, mataas ang penalty sa inyo."

x x x           x x x          x x x

Senator Guingona. I join the lofty motives, Mr. President, of the distinguished Sponsor. But I am again
disturbed by his statement that the prosecution does not have to prove the intent that resulted in the
death, that resulted in the serious physical injuries, that resulted in the acts of lasciviousness or
deranged mind. We do not have to prove the willful intent of the accused in proving or establishing the
crime of hazing. This seems, to me, a novel situation where we create the special crime without having
to go into the intent, which is one of the basic elements of any crime.

If there is no intent, there is no crime. If the intent were merely to initiate, then there is no offense. And
even the distinguished Sponsor admits that the organization, the intent to initiate, the intent to have a
new society or a new club is, per se, not punishable at all. What are punishable are the acts that lead to
the result. But if these results are not going to be proven by intent, but just because there was hazing, I
am afraid that it will disturb the basic concepts of the Revised Penal Code, Mr. President.

Senator Lina. Mr. President, the act of hazing, precisely, is being criminalized because in the context of
what is happening in the sororities and fraternities, when they conduct hazing, no one will admit that
their intention is to maim or to kill. So, we are already criminalizing the fact of inflicting physical pain. Mr.
President, it is a criminal act and we want it stopped, deterred, discouraged.

If that occurs, under this law, there is no necessity to prove that the masters intended to kill or the
masters intended to maim. What is important is the result of the act of hazing. Otherwise, the masters
or those who inflict the physical pain can easily escape responsibility and say, "We did not have the
intention to kill. This is part of our initiation rites. This is normal. We do not have any intention to kill or
maim."

This is the lusot, Mr. President. They might as well have been charged therefore with the ordinary crime
of homicide, mutilation, et cetera, where the prosecution will have a difficulty proving the elements if
they are separate offenses.

x x x           x x x          x x x

Senator Guingona. Mr. President, assuming there was a group that initiated and a person died. The
charge is murder. My question is: Under this bill if it becomes a law, would the prosecution have to
prove conspiracy or not anymore?

Senator Lina. Mr. President, if the person is present during hazing x x x

Senator Guingona. The persons are present. First, would the prosecution have to prove conspiracy?
Second, would the prosecution have to prove intent to kill or not?

Senator Lina. No more. As to the second question, Mr. President, if that occurs, there is no need to
prove intent to kill.

Senator Guingona. But the charge is murder.

Senator Lina. That is why I said that it should not be murder. It should be hazing, Mr.
President.  (Emphasis supplied)
236 

During a discussion between Senator Biazon and Senator Lina on the issue of whether to include
sodomy as a punishable act under the Anti-Hazing Law, Senator Lina further clarified thus:

Senator Biazon. Mr. President, this Representation has no objection to the inclusion of sodomy as one
of the conditions resulting from hazing as necessary to be punished. However, the act of sodomy can
be committed by two persons with or without consent.

To make it clearer, what is being punished here is the commission of sodomy forced into another
individual by another individual. I move, Mr. President, that sodomy be modified by the phrase "without
consent" for purposes of this section.

Senator Lina. I am afraid, Mr. President, that if we qualify sodomy with the concept that it is only going
to aggravate the crime of hazing if it is done without consent will change a lot of concepts here.
Because the results from hazing aggravate the offense with or without consent. In fact, when a person
joins a fraternity, sorority, or any association for that matter, it can be with or without the consent of the
intended victim. The fact that a person joins a sorority or fraternity with his consent does not negate the
crime of hazing.

This is a proposed law intended to protect the citizens from the malpractices that attend initiation which
may have been announced with or without physical infliction of pain or injury, Mr. President. Regardless
of whether there is announcement that there will be physical hazing or whether there is none, and
therefore, the neophyte is duped into joining a fraternity is of no moment. What is important is that there
is an infliction of physical pain.

The bottom line of this law is that a citizen even has to be protected from himself if he joins a fraternity,
so that at a certain point in time, the State, the individual, or the parents of the victim can run after the
perpetrators of the crime, regardless of whether or not there was consent on the part of the victim.

x x x           x x x          x x x

Senator Lina. Mr. President, I understand the position taken by the distinguished Gentleman from
Cavite and Metro Manila. It is correct that society sometimes adopts new mores, traditions, and
practices.

In this bill, we are not going to encroach into the private proclivities of some individuals when they do
their acts in private as we do not take a peek into the private rooms of couples. They can do their thing
if they want to make love in ways that are not considered acceptable by the mainstream of society. That
is not something that the State should prohibit.

But sodomy in this case is connected with hazing, Mr. President. Such that the act may even be
entered into with consent. It is not only sodomy. The infliction of pain may be done with the consent of
the neophyte. If the law is passed, that does not make the act of hazing not punishable because the
neophyte accepted the infliction of pain upon himself.

If the victim suffers from serious physical injuries, but the initiator said, "Well, he allowed it upon himself.
He consented to it." So, if we allow that reasoning that sodomy was done with the consent of the victim,
then we would not have passed any law at all. There will be no significance if we pass this bill, because
it will always be a defense that the victim allowed the infliction of pain or suffering. He accepted it as
part of the initiation rites.

But precisely, Mr. President that is one thing that we would want to prohibit. That the defense of
consent will not apply because the very act of inflicting physical pain or psychological suffering is, by
itself, a punishable act. The result of the act of hazing, like death or physical injuries merely aggravates
the act with higher penalties. But the defense of consent is not going to nullify the criminal nature of the
act.

So, if we accept the amendment that sodomy can only aggravate the offense if it is committed without
consent of the victim, then the whole foundation of this proposed law will collapse.

Senator Biazon. Thank you, Mr. President.

Senator Lina. Thank you very much.

The President. Is there any objection to the committee amendment? (Silence.) The Chair hears none;
the same is approved. 237

(Emphasis supplied)

Realizing the implication of removing the state’s burden to prove intent, Senator Lina, the principal
author of the Senate Bill, said:

I am very happy that the distinguished Minority Leader brought out the idea of intent or whether there it
is mala in se or mala prohibita. There can be a radical amendment if that is the point that he wants to go
to.

If we agree on the concept, then, maybe, we can just make this a special law on hazing. We will not
include this anymore under the Revised Penal Code. That is a possibility. I will not foreclose that
suggestion, Mr. President. (Emphasis supplied)
238 

Thus, having in mind the potential conflict between the proposed law and the core principle of mala in
se adhered to under the Revised Penal Code, Congress did not simply enact an amendment thereto.
Instead, it created a special law on hazing, founded upon the principle of mala prohibita. This dilemma
faced by Congress is further proof of how the nature of hazing – unique as against typical crimes – cast
a cloud of doubt on whether society considered the act as an inherently wrong conduct or mala in se at
the time. It is safe to presume that Lenny’s parents would not have consented to his participation in
239 

Aquila Fraternity’s initiation rites if the practice of hazing were considered by them as mala in se.

Furthermore, in Vedaña v. Valencia (1998), we noted through Associate Justice (now retired Chief
Justice) Hilario Davide that "in our nation’s very recent history, the people have spoken, through
Congress, to deem conduct constitutive of … hazing, [an] act[] previously considered harmless by
custom, as criminal." Although it may be regarded as a simple obiter dictum, the statement
240 

nonetheless shows recognition that hazing – or the conduct of initiation rites through physical and/or
psychological suffering – has not been traditionally criminalized. Prior to the 1995 Anti-Hazing Law,
there was to some extent a lacuna in the law; hazing was not clearly considered an intentional felony.
And when there is doubt on the interpretation of criminal laws, all must be resolved in favor of the
accused. In dubio pro reo.

For the foregoing reasons, and as a matter of law, the Court is constrained to rule against the trial
court’s finding of malicious intent to inflict physical injuries on Lenny Villa, there being no proof beyond
reasonable doubt of the existence of malicious intent to inflict physical injuries or animus iniuriandi as
required in mala in se cases, considering the contextual background of his death, the unique nature of
hazing, and absent a law prohibiting hazing.

The accused fraternity members guilty of reckless imprudence resulting in homicide

The absence of malicious intent does not automatically mean, however, that the accused fraternity
members are ultimately devoid of criminal liability. The Revised Penal Code also punishes felonies that
are committed by means of fault (culpa). According to Article 3 thereof, there is fault when the wrongful
act results from imprudence, negligence, lack of foresight, or lack of skill.

Reckless imprudence or negligence consists of a voluntary act done without malice, from which an
immediate personal harm, injury or material damage results by reason of an inexcusable lack of
precaution or advertence on the part of the person committing it. In this case, the danger is visible and
241 

consciously appreciated by the actor. In contrast, simple imprudence or negligence comprises an act
242 

done without grave fault, from which an injury or material damage ensues by reason of a mere lack of
foresight or skill. Here, the threatened harm is not immediate, and the danger is not openly visible. 
243  244

The test for determining whether or not a person is negligent in doing an act is as follows: Would a
245 

prudent man in the position of the person to whom negligence is attributed foresee harm to the person
injured as a reasonable consequence of the course about to be pursued? If so, the law imposes on the
doer the duty to take precaution against the mischievous results of the act. Failure to do so constitutes
negligence. 246

As we held in Gaid v. People, for a person to avoid being charged with recklessness, the degree of
precaution and diligence required varies with the degree of the danger involved. If, on account of a 247 

certain line of conduct, the danger of causing harm to another person is great, the individual who
chooses to follow that particular course of conduct is bound to be very careful, in order to prevent or
avoid damage or injury. In contrast, if the danger is minor, not much care is required. It is thus
248  249 

possible that there are countless degrees of precaution or diligence that may be required of an
individual, "from a transitory glance of care to the most vigilant effort." The duty of the person to
250 

employ more or less degree of care will depend upon the circumstances of each particular case. 251

There was patent recklessness in the hazing of Lenny Villa.

According to the NBI medico-legal officer, Lenny died of cardiac failure secondary to multiple traumatic
injuries. The officer explained that cardiac failure refers to the failure of the heart to work as a pump
252 

and as part of the circulatory system due to the lack of blood. In the present case, the victim’s heart
253 

could no longer work as a pumping organ, because it was deprived of its requisite blood and
oxygen. The deprivation was due to the "channeling" of the blood supply from the entire circulatory
254 

system – including the heart, arteries, veins, venules, and capillaries – to the thigh, leg, and arm areas
of Lenny, thus causing the formation of multiple hematomas or blood clots. The multiple hematomas
255 

were wide, thick, and deep, indicating that these could have resulted mainly from injuries sustained by
256 

the victim from fist blows, knee blows, paddles, or the like. Repeated blows to those areas caused the
257 

blood to gradually ooze out of the capillaries until the circulating blood became so markedly diminished
as to produce death.  The officer also found that the brain, liver, kidney, pancreas, intestines, and all
258 

other organs seen in the abdominals, as well as the thoracic organ in the lungs, were pale due to the
lack of blood, which was redirected to the thighs and forearms. It was concluded that there was
259 

nothing in the heart that would indicate that the victim suffered from a previous cardiac arrest or
disease. 260
The multiple hematomas or bruises found in Lenny Villa’s arms and thighs, resulting from repeated
blows to those areas, caused the loss of blood from his vital organs and led to his eventual death.
These hematomas must be taken in the light of the hazing activities performed on him by the Aquila
Fraternity. According to the testimonies of the co-neophytes of Lenny, they were punched, kicked,
elbowed, kneed, stamped on; and hit with different objects on their arms, legs, and thighs. They were
261 

also "paddled" at the back of their thighs or legs; and slapped on their faces. They were made to play
262  263 

rough basketball. Witness Marquez testified on Lenny, saying: "[T]inamaan daw sya sa spine." The
264  265 

NBI medico-legal officer explained that the death of the victim was the cumulative effect of the multiple
injuries suffered by the latter. The relevant portion of the testimony is as follows:
266 

Atty. Tadiar Doctor, there was, rather, it was your testimony on various cross examinations of defense
counsels that the injuries that you have enumerated on the body of the deceased Lenny Villa previously
marked as Exhibit "G-1" to "G-14" individually by themselves would not cause the death of the victim.
The question I am going to propound to you is what is the cumulative effect of all of these injuries
marked from Exhibit "G-1" to "G-14"?

Witness All together nothing in concert to cause to the demise of the victim. So, it is not fair for us to
isolate such injuries here because we are talking of the whole body. At the same manner that as a car
would not run minus one (1) wheel. No, the more humane in human approach is to interpret all those
injuries in whole and not in part. 267

There is also evidence to show that some of the accused fraternity members were drinking during the
initiation rites.
268

Consequently, the collective acts of the fraternity members were tantamount to recklessness, which
made the resulting death of Lenny a culpable felony. It must be remembered that organizations owe to
their initiates a duty of care not to cause them injury in the process. With the foregoing facts, we rule
269 

that the accused are guilty of reckless imprudence resulting in homicide. Since the NBI medico-legal
officer found that the victim’s death was the cumulative effect of the injuries suffered, criminal
responsibility redounds to all those who directly participated in and contributed to the infliction of
physical injuries.

It appears from the aforementioned facts that the incident may have been prevented, or at least
mitigated, had the alumni of Aquila Fraternity – accused Dizon and Villareal – restrained themselves
from insisting on reopening the initiation rites. Although this point did not matter in the end, as records
would show that the other fraternity members participated in the reopened initiation rites – having in
mind the concept of "seniority" in fraternities – the implication of the presence of alumni should be seen
as a point of review in future legislation. We further note that some of the fraternity members were
intoxicated during Lenny’s initiation rites. In this light, the Court submits to Congress, for legislative
consideration, the amendment of the Anti-Hazing Law to include the fact of intoxication and the
presence of non-resident or alumni fraternity members during hazing as aggravating circumstances that
would increase the applicable penalties.

It is truly astonishing how men would wittingly – or unwittingly –impose the misery of hazing and employ
appalling rituals in the name of brotherhood. There must be a better way to establish "kinship." A
neophyte admitted that he joined the fraternity to have more friends and to avail himself of the benefits it
offered, such as tips during bar examinations. Another initiate did not give up, because he feared
270 

being looked down upon as a quitter, and because he felt he did not have a choice. Thus, for Lenny
271 

Villa and the other neophytes, joining the Aquila Fraternity entailed a leap in the dark. By giving consent
under the circumstances, they left their fates in the hands of the fraternity members. Unfortunately, the
hands to which lives were entrusted were barbaric as they were reckless.

Our finding of criminal liability for the felony of reckless imprudence resulting in homicide shall cover
only accused Tecson, Ama, Almeda, Bantug, and Dizon. Had the Anti-Hazing Law been in effect then,
these five accused fraternity members would have all been convicted of the crime of hazing punishable
by reclusion perpetua (life imprisonment). Since there was no law prohibiting the act of hazing when
272 

Lenny died, we are constrained to rule according to existing laws at the time of his death. The CA found
that the prosecution failed to prove, beyond reasonable doubt, Victorino et al.’s individual participation
in the infliction of physical injuries upon Lenny Villa. As to accused Villareal, his criminal liability was
273 

totally extinguished by the fact of his death, pursuant to Article 89 of the Revised Penal Code.

Furthermore, our ruling herein shall be interpreted without prejudice to the applicability of the Anti-
Hazing Law to subsequent cases. Furthermore, the modification of criminal liability from slight physical
injuries to reckless imprudence resulting in homicide shall apply only with respect to accused Almeda,
Ama, Bantug, and Tecson.

The accused liable to pay damages

The CA awarded damages in favor of the heirs of Lenny Villa in the amounts of ₱ 50,000 as civil
indemnity ex delicto and ₱ 1,000,000 as moral damages, to be jointly and severally paid by accused
Dizon and Villareal. It also awarded the amount of ₱ 30,000 as indemnity to be jointly and severally paid
by accused Almeda, Ama, Bantug, and Tecson. 1âwphi1

Civil indemnity ex delicto is automatically awarded for the sole fact of death of the victim. In
274 

accordance with prevailing jurisprudence, we sustain the CA’s award of indemnity in the amount of ₱
275 

50,000.

The heirs of the victim are entitled to actual or compensatory damages, including expenses incurred in
connection with the death of the victim, so long as the claim is supported by tangible
documents. Though we are prepared to award actual damages, the Court is prevented from granting
276 

them, since the records are bereft of any evidence to show that actual expenses were incurred or
proven during trial. Furthermore, in the appeal, the Solicitor General does not interpose any claim for
actual damages. 277

The heirs of the deceased may recover moral damages for the grief suffered on account of the victim’s
death. This penalty is pursuant to Article 2206(3) of the Civil Code, which provides that the "spouse,
278 

legitimate and illegitimate descendants and the ascendants of the deceased may demand moral
damages for mental anguish by reason of the death of the deceased." Thus, we hereby we affirm the
279 

CA’s award of moral damages in the amount of ₱ 1,000,000.

WHEREFORE, the appealed Judgment in G.R. No. 155101 finding petitioner Fidelito Dizon guilty of
homicide is hereby MODIFIED and set aside IN PART. The appealed Judgment in G.R. No. 154954 –
finding Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent Tecson guilty of
the crime of slight physical injuries – is also MODIFIED and set aside in part. Instead, Fidelito Dizon,
Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent Tecson are found guilty
beyond reasonable doubt of reckless imprudence resulting in homicide defined and penalized under
Article 365 in relation to Article 249 of the Revised Penal Code. They are hereby sentenced to suffer an
indeterminate prison term of four (4) months and one (1) day of arresto mayor, as minimum, to four (4)
years and two (2) months of prision correccional, as maximum. In addition, accused are ORDERED
jointly and severally to pay the heirs of Lenny Villa civil indemnity ex delicto in the amount of ₱ 50,000,
and moral damages in the amount of ₱ 1,000,000, plus legal interest on all damages awarded at the
rate of 12% from the date of the finality of this Decision until satisfaction. Costs de oficio.
280 

The appealed Judgment in G.R. No. 154954, acquitting Victorino et al., is hereby affirmed. The
appealed Judgments in G.R. Nos. 178057 & 178080, dismissing the criminal case filed against
Escalona, Ramos, Saruca, and Adriano, are likewise affirmed. Finally, pursuant to Article 89(1) of the
Revised Penal Code, the Petition in G.R. No. 151258 is hereby dismissed, and the criminal case
against Artemio Villareal deemed closed and TERMINATED.

Let copies of this Decision be furnished to the Senate President and the Speaker of the House of
Representatives for possible consideration of the amendment of the Anti-Hazing Law to include the fact
of intoxication and the presence of non-resident or alumni fraternity members during hazing as
aggravating circumstances that would increase the applicable penalties.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 196271               February 28, 2012

DATU MICHAEL ABAS KIDA, in his personal capacity, and in representation of MAGUINDANAO
FEDERATION OF AUTONOMOUS IRRIGATORS ASSOCIATION, INC., HADJI MUHMINA J.
USMAN, JOHN ANTHONY L. LIM, JAMILON T. ODIN, ASRIN TIMBOL JAIYARI, MUJIB M.
KALANG, ALIH AL-SAIDI J. SAPI-E, KESSAR DAMSIE ABDIL, and BASSAM ALUH
SAUPI, Petitioners,
vs.
SENATE OF THE PHILIPPINES, represented by its President JUAN PONCE ENRILE, HOUSE OF
REPRESENTATIVES, thru SPEAKER FELICIANO BELMONTE, COMMISSION ON ELECTIONS,
thru its Chairman, SIXTO BRILLANTES, JR., PAQUITO OCHOA, JR., Office of the President
Executive Secretary, FLORENCIO ABAD, JR., Secretary of Budget, and ROBERTO TAN,
Treasurer of the Philippines, Respondents.

x-----------------------x

G.R. No. 196305

BASARI D. MAPUPUNO, Petitioner,
vs.
SIXTO BRILLANTES, in his capacity as Chairman of the Commission on Elections, FLORENCIO
ABAD, JR. in his capacity as Secretary of the Department of Budget and Management, PAQUITO
OCHOA, JR., in his capacity as Executive Secretary, JUAN PONCE ENRILE, in his capacity as
Senate President, and FELICIANO BELMONTE, in his capacity as Speaker of the House of
Representatives, Respondents.

x-----------------------x

G.R. No. 197221

REP. EDCEL C. LAGMAN, Petitioner,

vs.
PAQUITO N. OCHOA, JR., in his capacity as the Executive Secretary, and the COMMISSION ON
ELECTIONS, Respondents.

x-----------------------x

G.R. No. 197280

ALMARIM CENTI TILLAH, DATU CASAN CONDING CANA, and PARTIDO DEMOKRATIKO
PILIPINO LAKAS NG BAYAN (PDP-LABAN), Petitioners,
vs.
THE COMMISSION ON ELECTIONS, through its Chairman, SIXTO BRILLANTES, JR., HON.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary, HON. FLORENCIO B. ABAD,
JR., in his capacity as Secretary of the Department of Budget and Management, and HON.
ROBERTO B. TAN, in his capacity as Treasurer of the Philippines, Respondents.

x-----------------------x

G.R. No. 197282

ATTY. ROMULO B. MACALINTAL, Petitioner,

vs.
COMMISSION ON ELECTIONS and THE OFFICE OF THE PRESIDENT, through EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR., Respondents.

x-----------------------x

G.R. No. 197392

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
THE COMMISSION ON ELECTIONS and EXECUTIVE SECRETARY PAQUITO N. OCHOA,
JR., Respondents.

x-----------------------x

G.R. No. 197454

JACINTO V. PARAS, Petitioner,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., and THE COMMISSION ON
ELECTIONS, Respondents.

MINORITY RIGHTS FORUM, PHILIPPINES, INC., Respondents-Intervenor.

RESOLUTION

BRION, J.:

We resolve: (a) the motion for reconsideration filed by petitioners Datu Michael Abas Kida, et al. in G.R.
No. 196271; (b) the motion for reconsideration filed by petitioner Rep. Edcel Lagman in G.R. No.
197221; (c) the ex abundante ad cautelam motion for reconsideration filed by petitioner Basari
Mapupuno in G.R. No. 196305; (d) the motion for reconsideration filed by petitioner Atty. Romulo
Macalintal in G.R. No. 197282; (e) the motion for reconsideration filed by petitioners Almarim Centi
Tillah, Datu Casan Conding Cana and Partido Demokratiko Pilipino Lakas ng Bayan in G.R. No.
197280; (f) the manifestation and motion filed by petitioners Almarim Centi Tillah, et al. in G.R. No.
197280; and (g) the very urgent motion to issue clarificatory resolution that the temporary restraining
order (TRO) is still existing and effective.

These motions assail our Decision dated October 18, 2011, where we upheld the constitutionality of
Republic Act (RA) No. 10153. Pursuant to the constitutional mandate of synchronization, RA No. 10153
postponed the regional elections in the Autonomous Region in Muslim Mindanao (ARMM) (which were
scheduled to be held on the second Monday of August 2011) to the second Monday of May 2013 and
recognized the President’s power to appoint officers-in-charge (OICs) to temporarily assume these
positions upon the expiration of the terms of the elected officials.

The Motions for Reconsideration

The petitioners in G.R. No. 196271 raise the following grounds in support of their motion:

I. THE HONORABLE COURT ERRED IN CONCLUDING THAT THE ARMM ELECTIONS ARE
LOCAL ELECTIONS, CONSIDERING THAT THE CONSTITUTION GIVES THE ARMM A
SPECIAL STATUS AND IS SEPARATE AND DISTINCT FROM ORDINARY LOCAL
GOVERNMENT UNITS.

II. R.A. 10153 AND R.A. 9333 AMEND THE ORGANIC ACT.

III. THE SUPERMAJORITY PROVISIONS OF THE ORGANIC ACT (R.A. 9054) ARE NOT
IRREPEALABLE LAWS.
 IV. SECTION 3, ARTICLE XVII OF R.A. 9054 DOES NOT VIOLATE SECTION 18, ARTICLE X
OF THE CONSTITUTION.

V. BALANCE OF INTERESTS TILT IN FAVOR OF THE DEMOCRATIC PRINCIPLE[.] 1

The petitioner in G.R. No. 197221 raises similar grounds, arguing that:

I. THE ELECTIVE REGIONAL EXECUTIVE AND LEGISLATIVE OFFICIALS OF ARMM

CANNOT BE CONSIDERED AS OR EQUATED WITH THE TRADITIONAL LOCAL
GOVERNMENT OFFICIALS IN THE LOCAL GOVERNMENT UNITS (LGUs) BECAUSE (A)
THERE IS NO EXPLICIT CONSTITUTIONAL PROVISION ON SUCH PARITY; AND (B) THE
ARMM IS MORE SUPERIOR THAN LGUs IN STRUCTURE, POWERS AND AUTONOMY,
AND CONSEQUENTLY IS A CLASS OF ITS OWN APART FROM TRADITIONAL LGUs.

II. THE UNMISTAKABLE AND UNEQUIVOCAL CONSTITUTIONAL MANDATE FOR AN

ELECTIVE AND REPRESENTATIVE EXECUTIVE DEPARTMENT AND LEGISLATIVE
ASSEMBLY IN ARMM INDUBITABLY PRECLUDES THE APPOINTMENT BY THE
PRESIDENT OF OFFICERS-IN-CHARGE (OICs), ALBEIT MOMENTARY OR TEMPORARY,
FOR THE POSITIONS OF ARMM GOVERNOR, VICE GOVERNOR AND MEMBERS OF THE
REGIONAL ASSEMBLY.

III. THE PRESIDENT’S APPOINTING POWER IS LIMITED TO APPOINTIVE OFFICIALS AND

DOES NOT EXTEND TO ELECTIVE OFFICIALS EVEN AS THE PRESIDENT IS ONLY
VESTED WITH SUPERVISORY POWERS OVER THE ARMM, THEREBY NEGATING THE
AWESOME POWER TO APPOINT AND REMOVE OICs OCCUPYING ELECTIVE
POSITIONS.

IV. THE CONSTITUTION DOES NOT PROSCRIBE THE HOLDOVER OF ARMM ELECTED
OFFICIALS PENDING THE ELECTION AND QUALIFICATION OF THEIR SUCCESSORS.

V. THE RULING IN OSMENA DOES NOT APPLY TO ARMM ELECTED OFFICIALS WHOSE
TERMS OF OFFICE ARE NOT PROVIDED FOR BY THE CONSTITUTION BUT PRESCRIBED
BY THE ORGANIC ACTS.

VI. THE REQUIREMENT OF A SUPERMAJORITY OF ¾ VOTES IN THE HOUSE OF

REPRESENTATIVES AND THE SENATE FOR THE VALIDITY OF A SUBSTANTIVE
AMENDMENT OR REVISION OF THE ORGANIC ACTS DOES NOT IMPOSE AN
IRREPEALABLE LAW.

VII. THE REQUIREMENT OF A PLEBISCITE FOR THE EFFECTIVITY OF A SUBSTANTIVE

AMENDMENT OR REVISION OF THE ORGANIC ACTS DOES NOT UNDULY EXPAND THE
PLEBISCITE REQUIREMENT OF THE CONSTITUTION.

VIII. SYNCHRONIZATION OF THE ARMM ELECTION WITH THE NATIONAL AND LOCAL
ELECTIONS IS NOT MANDATED BY THE CONSTITUTION.

IX. THE COMELEC HAS THE AUTHORITY TO HOLD AND CONDUCT SPECIAL ELECTIONS
IN ARMM, AND THE ENACTMENT OF AN IMPROVIDENT AND UNCONSTITUTIONAL
STATUTE IS AN ANALOGOUS CAUSE WARRANTING COMELEC’S HOLDING OF SPECIAL
ELECTIONS. (italics supplied)
2 

The petitioner in G.R. No. 196305 further asserts that:

I. BEFORE THE COURT MAY CONSTRUE OR INTERPRET A STATUTE, IT IS A CONDITION

SINE QUA NON THAT THERE BE DOUBT OR AMBIGUITY IN ITS LANGUAGE.

THE TRANSITORY PROVISIONS HOWEVER ARE CLEAR AND UNAMBIGUOUS: THEY

REFER TO THE 1992 ELECTIONS AND TURN-OVER OF ELECTIVE OFFICIALS.

IN THUS RECOGNIZING A SUPPOSED "INTENT" OF THE FRAMERS, AND APPLYING THE

SAME TO ELECTIONS 20 YEARS AFTER, THE HONORABLE SUPREME COURT MAY
HAVE VIOLATED THE FOREMOST RULE IN STATUTORY CONSTRUCTION.

xxxx

II. THE HONORABLE COURT SHOULD HAVE CONSIDERED THAT RA 9054, AN ORGANIC
ACT, WAS COMPLETE IN ITSELF. HENCE, RA 10153 SHOULD BE CONSIDERED TO HAVE
BEEN ENACTED PRECISELY TO AMEND RA 9054.
 xxxx

III. THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS ERROR IN

DECLARING THE 2/3 VOTING REQUIREMENT SET FORTH IN RA 9054 AS
UNCONSTITUTIONAL.

xxxx

IV. THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS ERROR IN HOLDING
THAT A PLEBISCITE IS NOT NECESSARY IN AMENDING THE ORGANIC ACT.

xxxx

V. THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN DECLARING THE

HOLD-OVER OF ARMM ELECTIVE OFFICIALS UNCONSTITUTIONAL.

xxxx

VI. THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN UPHOLDING THE

APPOINTMENT OF OFFICERS-IN-CHARGE. (italics and underscoring supplied)
3 

The petitioner in G.R. No. 197282 contends that:

A.

ASSUMING WITHOUT CONCEDING THAT THE APPOINTMENT OF OICs FOR THE

REGIONAL GOVERNMENT OF THE ARMM IS NOT UNCONSTITUTIONAL TO BEGIN WITH,
SUCH APPOINTMENT OF OIC REGIONAL OFFICIALS WILL CREATE A FUNDAMENTAL
CHANGE IN THE BASIC STRUCTURE OF THE REGIONAL GOVERNMENT SUCH THAT
R.A. NO. 10153 SHOULD HAVE BEEN SUBMITTED TO A PLEBISCITE IN THE ARMM FOR
APPROVAL BY ITS PEOPLE, WHICH PLEBISCITE REQUIREMENT CANNOT BE
CIRCUMVENTED BY SIMPLY CHARACTERIZING THE PROVISIONS OF R.A. NO. 10153 ON
APPOINTMENT OF OICs AS AN "INTERIM MEASURE".

B.

THE HONORABLE COURT ERRED IN RULING THAT THE APPOINTMENT BY THE

PRESIDENT OF OICs FOR THE ARMM REGIONAL GOVERNMENT IS NOT VIOLATIVE OF
THE CONSTITUTION.

C.

THE HOLDOVER PRINCIPLE ADOPTED IN R.A. NO. 9054 DOES NOT VIOLATE THE
CONSTITUTION, AND BEFORE THEIR SUCCESSORS ARE ELECTED IN EITHER AN
ELECTION TO BE HELD AT THE SOONEST POSSIBLE TIME OR IN MAY 2013, THE SAID
INCUMBENT ARMM REGIONAL OFFICIALS MAY VALIDLY CONTINUE FUNCTIONING AS
SUCH IN A HOLDOVER CAPACITY IN ACCORDANCE WITH SECTION 7, ARTICLE VII OF
R.A. NO. 9054.

D.

WITH THE CANCELLATION OF THE AUGUST 2011 ARMM ELECTIONS, SPECIAL

ELECTIONS MUST IMMEDIATELY BE HELD FOR THE ELECTIVE REGIONAL OFFICIALS
OF THE ARMM WHO SHALL SERVE UNTIL THEIR SUCCESSORS ARE ELECTED IN THE
MAY 2013 SYNCHRONIZED ELECTIONS. 4

Finally, the petitioners in G.R. No. 197280 argue that:

a) the Constitutional mandate of synchronization does not apply to the ARMM elections;

b) RA No. 10153 negates the basic principle of republican democracy which, by constitutional
mandate, guides the governance of the Republic;

c) RA No. 10153 amends the Organic Act (RA No. 9054) and, thus, has to comply with the 2/3
vote from the House of Representatives and the Senate, voting separately, and be ratified in a
plebiscite;
 d) if the choice is between elective officials continuing to hold their offices even after their terms
are over and non-elective individuals getting into the vacant elective positions by appointment
as OICs, the holdover option is the better choice;

e) the President only has the power of supervision over autonomous regions, which does not
include the power to appoint OICs to take the place of ARMM elective officials; and

f) it would be better to hold the ARMM elections separately from the national and local elections
as this will make it easier for the authorities to implement election laws.

In essence, the Court is asked to resolve the following questions:

(a) Does the Constitution mandate the synchronization of ARMM regional elections with national
and local elections?

(b) Does RA No. 10153 amend RA No. 9054? If so, does RA No. 10153 have to comply with the
supermajority vote and plebiscite requirements?

(c) Is the holdover provision in RA No. 9054 constitutional?

(d) Does the COMELEC have the power to call for special elections in ARMM?

(e) Does granting the President the power to appoint OICs violate the elective and
representative nature of ARMM regional legislative and executive offices?

(f) Does the appointment power granted to the President exceed the President’s supervisory
powers over autonomous regions?

The Court’s Ruling

We deny the motions for lack of merit.

Synchronization mandate includes ARMM elections

The Court was unanimous in holding that the Constitution mandates the synchronization of national and
local elections. While the Constitution does not expressly instruct Congress to synchronize the national
and local elections, the intention can be inferred from the following provisions of the Transitory
Provisions (Article XVIII) of the Constitution, which state:

Section 1. The first elections of Members of the Congress under this Constitution shall be held on the
second Monday of May, 1987.

The first local elections shall be held on a date to be determined by the President, which may be
simultaneous with the election of the Members of the Congress. It shall include the election of all
Members of the city or municipal councils in the Metropolitan Manila area.

Section 2. The Senators, Members of the House of Representatives, and the local officials first elected
under this Constitution shall serve until noon of June 30, 1992.

Of the Senators elected in the elections in 1992, the first twelve obtaining the highest number of votes
shall serve for six years and the remaining twelve for three years.

xxxx

Section 5. The six-year term of the incumbent President and Vice-President elected in the February 7,
1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30,
1992.

The first regular elections for the President and Vice-President under this Constitution shall be held on
the second Monday of May, 1992.

To fully appreciate the constitutional intent behind these provisions, we refer to the discussions of the
Constitutional Commission:

MR. MAAMBONG. For purposes of identification, I will now read a section which we will temporarily
indicate as Section 14. It reads: "THE SENATORS, MEMBERS OF THE HOUSE OF
REPRESENTATIVES AND THE LOCAL OFFICIALS ELECTED IN THE FIRST ELECTION SHALL
SERVE FOR FIVE YEARS, TO EXPIRE AT NOON OF JUNE 1992."

This was presented by Commissioner Davide, so may we ask that Commissioner Davide be
recognized.

THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner Davide is recognized.

MR. DAVIDE. Before going to the proposed amendment, I would only state that in view of the action
taken by the Commission on Section 2 earlier, I am formulating a new proposal. It will read as follows:
"THE SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES AND THE LOCAL
OFFICIALS FIRST ELECTED UNDER THIS CONSTITUTION SHALL SERVE UNTIL NOON OF JUNE
30, 1992."

I proposed this because of the proposed section of the Article on Transitory Provisions giving a term to
the incumbent President and Vice-President until 1992. Necessarily then, since the term provided by
the Commission for Members of the Lower House and for local officials is three years, if there will be an
election in 1987, the next election for said officers will be in 1990, and it would be very close to 1992.
We could never attain, subsequently, any synchronization of election which is once every three years.

So under my proposal we will be able to begin actual synchronization in 1992, and consequently,

we should not have a local election or an election for Members of the Lower House in 1990 for them to
be able to complete their term of three years each. And if we also stagger the Senate, upon the first
election it will result in an election in 1993 for the Senate alone, and there will be an election for 12
Senators in 1990. But for the remaining 12 who will be elected in 1987, if their term is for six years, their
election will be in 1993. So, consequently we will have elections in 1990, in 1992 and in 1993. The later
election will be limited to only 12 Senators and of course to the local officials and the Members of the
Lower House. But, definitely, thereafter we can never have an election once every three years,
therefore defeating the very purpose of the Commission when we adopted the term of six years for the
President and another six years for the Senators with the possibility of staggering with 12 to serve for
six years and 12 for three years insofar as the first Senators are concerned. And so my proposal is
the only way to effect the first synchronized election which would mean, necessarily, a bonus of
two years to the Members of the Lower House and a bonus of two years to the local elective
officials.

THE PRESIDING OFFICER (Mr. Rodrigo). What does the committee say?

MR. DE CASTRO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner de Castro is recognized.

MR. DE CASTRO. Thank you.

During the discussion on the legislative and the synchronization of elections, I was the one who
proposed that in order to synchronize the elections every three years, which the body approved — the
first national and local officials to be elected in 1987 shall continue in office for five years, the same
thing the Honorable Davide is now proposing. That means they will all serve until 1992, assuming that
the term of the President will be for six years and continue beginning in 1986. So from 1992, we will
again have national, local and presidential elections. This time, in 1992, the President shall have a
term until 1998 and the first 12 Senators will serve until 1998, while the next 12 shall serve until
1995, and then the local officials elected in 1992 will serve until 1995. From then on, we shall
have an election every three years.

So, I will say that the proposition of Commissioner Davide is in order, if we have to synchronize our
elections every three years which was already approved by the body.

Thank you, Mr. Presiding Officer.

xxxx

MR. GUINGONA. What will be synchronized, therefore, is the election of the incumbent President and
Vice-President in 1992.

MR. DAVIDE. Yes.

MR. GUINGONA. Not the reverse. Will the committee not synchronize the election of the Senators and
local officials with the election of the President?
MR. DAVIDE. It works both ways, Mr. Presiding Officer. The attempt here is on the assumption that the
provision of the Transitory Provisions on the term of the incumbent President and Vice-President would
really end in 1992.

MR. GUINGONA. Yes.

MR. DAVIDE. In other words, there will be a single election in 1992 for all, from the President up
to the municipal officials. (emphases and underscoring ours)
5 

The framers of the Constitution could not have expressed their objective more clearly – there was to be
a single election in 1992 for all elective officials – from the President down to the municipal officials.
Significantly, the framers were even willing to temporarily lengthen or shorten the terms of elective
officials in order to meet this objective, highlighting the importance of this constitutional mandate.

We came to the same conclusion in Osmeña v. Commission on Elections, where we unequivocally

6 

stated that "the Constitution has mandated synchronized national and local elections." Despite the
7 

length and verbosity of their motions, the petitioners have failed to convince us to deviate from this
established ruling.

Neither do we find any merit in the petitioners’ contention that the ARMM elections are not covered by
the constitutional mandate of synchronization because the ARMM elections were not specifically
mentioned in the above-quoted Transitory Provisions of the Constitution.

That the ARMM elections were not expressly mentioned in the Transitory Provisions of the Constitution
on synchronization cannot be interpreted to mean that the ARMM elections are not covered by the
constitutional mandate of synchronization. We have to consider that the ARMM, as we now know it, had
not yet been officially organized at the time the Constitution was enacted and ratified by the people.
Keeping in mind that a constitution is not intended to provide merely for the exigencies of a few years
but is to endure through generations for as long as it remains unaltered by the people as ultimate
sovereign, a constitution should be construed in the light of what actually is a continuing instrument to
govern not only the present but also the unfolding events of the indefinite future. Although the principles
embodied in a constitution remain fixed and unchanged from the time of its adoption, a constitution
must be construed as a dynamic process intended to stand for a great length of time, to be progressive
and not static. 8

To reiterate, Article X of the Constitution, entitled "Local Government," clearly shows the intention of the
Constitution to classify autonomous regions, such as the ARMM, as local governments. We refer to
Section 1 of this Article, which provides:

Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces,
cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided.

The inclusion of autonomous regions in the enumeration of political subdivisions of the State under the
heading "Local Government" indicates quite clearly the constitutional intent to consider autonomous
regions as one of the forms of local governments.

That the Constitution mentions only the "national government" and the "local governments," and does
not make a distinction between the "local government" and the "regional government," is particularly
revealing, betraying as it does the intention of the framers of the Constitution to consider the
autonomous regions not as separate forms of government, but as political units which, while having
more powers and attributes than other local government units, still remain under the category of local
governments. Since autonomous regions are classified as local governments, it follows that elections
held in autonomous regions are also considered as local elections.

The petitioners further argue that even assuming that the Constitution mandates the synchronization of
elections, the ARMM elections are not covered by this mandate since they are regional elections and
not local elections.

In construing provisions of the Constitution, the first rule is verba legis, "that is, wherever possible, the
words used in the Constitution must be given their ordinary meaning except where technical terms are
employed." Applying this principle to determine the scope of "local elections," we refer to the meaning
9 

of the word "local," as understood in its ordinary sense. As defined in Webster’s Third New International
Dictionary Unabridged, "local" refers to something "that primarily serves the needs of a particular limited
district, often a community or minor political subdivision." Obviously, the ARMM elections, which are
held within the confines of the autonomous region of Muslim Mindanao, fall within this definition.

To be sure, the fact that the ARMM possesses more powers than other provinces, cities, or
municipalities is not enough reason to treat the ARMM regional elections differently from the other local
elections. Ubi lex non distinguit nec nos distinguire debemus. When the law does not distinguish, we
must not distinguish.10

RA No. 10153 does not amend RA No. 9054

The petitioners are adamant that the provisions of RA No. 10153, in postponing the ARMM elections,
amend RA No. 9054.

We cannot agree with their position.

A thorough reading of RA No. 9054 reveals that it fixes the schedule for only the first ARMM
elections; it does not provide the date for the succeeding regular ARMM elections. In providing for the
11 

date of the regular ARMM elections, RA No. 9333 and RA No. 10153 clearly do not amend RA No.
9054 since these laws do not change or revise any provision in RA No. 9054. In fixing the date of the
ARMM elections subsequent to the first election, RA No. 9333 and RA No. 10153 merely filled the gap
left in RA No. 9054.

We reiterate our previous observations:

This view – that Congress thought it best to leave the determination of the date of succeeding ARMM
elections to legislative discretion – finds support in ARMM’s recent history.

To recall, RA No. 10153 is not the first law passed that rescheduled the ARMM elections. The First
Organic Act – RA No. 6734 – not only did not fix the date of the subsequent elections; it did not even fix
the specific date of the first ARMM elections, leaving the date to be fixed in another legislative
enactment. Consequently, RA No. 7647, RA No. 8176, RA No. 8746, RA No. 8753, and RA No. 9012
were all enacted by Congress to fix the dates of the ARMM elections. Since these laws did not change
or modify any part or provision of RA No. 6734, they were not amendments to this latter law.
Consequently, there was no need to submit them to any plebiscite for ratification.

The Second Organic Act – RA No. 9054 – which lapsed into law on March 31, 2001, provided that the
first elections would be held on the second Monday of September 2001. Thereafter, Congress passed
RA No. 9140 to reset the date of the ARMM elections. Significantly, while RA No. 9140 also scheduled
the plebiscite for the ratification of the Second Organic Act (RA No. 9054), the new date of the ARMM
regional elections fixed in RA No. 9140 was not among the provisions ratified in the plebiscite
held to approve RA No. 9054. Thereafter, Congress passed RA No. 9333, which further reset the date
of the ARMM regional elections. Again, this law was not ratified through a plebiscite.

From these legislative actions, we see the clear intention of Congress to treat the laws which fix the
date of the subsequent ARMM elections as separate and distinct from the Organic Acts. Congress only
acted consistently with this intent when it passed RA No. 10153 without requiring compliance with the
amendment prerequisites embodied in Section 1 and Section 3, Article XVII of RA No.
9054. (emphases supplied)
12 

The petitioner in G.R. No. 196305 contends, however, that there is no lacuna in RA No. 9054 as
regards the date of the subsequent ARMM elections. In his estimation, it can be implied from the
provisions of RA No. 9054 that the succeeding elections are to be held three years after the date of the
first ARMM regional elections.

We find this an erroneous assertion. Well-settled is the rule that the court may not, in the guise of
interpretation, enlarge the scope of a statute and include therein situations not provided nor intended by
the lawmakers. An omission at the time of enactment, whether careless or calculated, cannot be
judicially supplied however later wisdom may recommend the inclusion. Courts are not authorized to
13 

insert into the law what they think should be in it or to supply what they think the legislature would have
supplied if its attention had been called to the omission. Providing for lapses within the law falls within
14 

the exclusive domain of the legislature, and courts, no matter how well-meaning, have no authority to
intrude into this clearly delineated space.

Since RA No. 10153 does not amend, but merely fills in the gap in RA No. 9054, there is no need for
RA No. 10153 to comply with the amendment requirements set forth in Article XVII of RA No. 9054.

Supermajority vote requirement makes RA No. 9054 an irrepealable law

Even assuming that RA No. 10153 amends RA No. 9054, however, we have already established that
the supermajority vote requirement set forth in Section 1, Article XVII of RA No. 9054 is
15 

unconstitutional for violating the principle that Congress cannot pass irrepealable laws.

The power of the legislature to make laws includes the power to amend and repeal these laws. Where
the legislature, by its own act, attempts to limit its power to amend or repeal laws, the Court has the
duty to strike down such act for interfering with the plenary powers of Congress. As we explained
in Duarte v. Dade: 16

A state legislature has a plenary law-making power over all subjects, whether pertaining to persons or
things, within its territorial jurisdiction, either to introduce new laws or repeal the old, unless prohibited
expressly or by implication by the federal constitution or limited or restrained by its own. It cannot bind
itself or its successors by enacting irrepealable laws except when so restrained. Every legislative body
may modify or abolish the acts passed by itself or its predecessors. This power of repeal may be
exercised at the same session at which the original act was passed; and even while a bill is in its
progress and before it becomes a law. This legislature cannot bind a future legislature to a
particular mode of repeal. It cannot declare in advance the intent of subsequent legislatures or
the effect of subsequent legislation upon existing statutes. [emphasis ours]

Under our Constitution, each House of Congress has the power to approve bills by a mere majority
vote, provided there is quorum. In requiring all laws which amend RA No. 9054 to comply with a higher
17 

voting requirement than the Constitution provides (2/3 vote), Congress, which enacted RA No. 9054,
clearly violated the very principle which we sought to establish in Duarte. To reiterate, the act of one
legislature is not binding upon, and cannot tie the hands of, future legislatures. 18

We also highlight an important point raised by Justice Antonio T. Carpio in his dissenting opinion, where
he stated: "Section 1, Article XVII of RA 9054 erects a high vote threshold for each House of Congress
to surmount, effectively and unconstitutionally, taking RA 9054 beyond the reach of Congress’
amendatory powers. One Congress cannot limit or reduce the plenary legislative power of succeeding
Congresses by requiring a higher vote threshold than what the Constitution requires to enact, amend or
repeal laws. No law can be passed fixing such a higher vote threshold because Congress has no
power, by ordinary legislation, to amend the Constitution." 19

Plebiscite requirement in RA No. 9054 overly broad

Similarly, we struck down the petitioners’ contention that the plebiscite requirement applies to all
20 

amendments of RA No. 9054 for being an unreasonable enlargement of the plebiscite requirement set
forth in the Constitution.

Section 18, Article X of the Constitution provides that "[t]he creation of the autonomous region shall be
effective when approved by majority of the votes cast by the constituent units in a plebiscite called for
the purpose[.]" We interpreted this to mean that only amendments to, or revisions of, the Organic Act
constitutionally-essential to the creation of autonomous regions – i.e., those aspects specifically
mentioned in the Constitution which Congress must provide for in the Organic Act – require ratification
21 

through a plebiscite. We stand by this interpretation.

The petitioners argue that to require all amendments to RA No. 9054 to comply with the plebiscite
requirement is to recognize that sovereignty resides primarily in the people.

While we agree with the petitioners’ underlying premise that sovereignty ultimately resides with the
people, we disagree that this legal reality necessitates compliance with the plebiscite requirement for all
amendments to RA No. 9054. For if we were to go by the petitioners’ interpretation of Section 18, Article
X of the Constitution that all amendments to the Organic Act have to undergo the plebiscite requirement
before becoming effective, this would lead to impractical and illogical results – hampering the ARMM’s
progress by impeding Congress from enacting laws that timely address problems as they arise in the
region, as well as weighing down the ARMM government with the costs that unavoidably follow the
holding of a plebiscite.

Interestingly, the petitioner in G.R. No. 197282 posits that RA No. 10153, in giving the President the
power to appoint OICs to take the place of the elective officials of the ARMM, creates a fundamental
change in the basic structure of the government, and thus requires compliance with the plebiscite
requirement embodied in RA No. 9054.

Again, we disagree.

The pertinent provision in this regard is Section 3 of RA No. 10153, which reads:

Section 3. Appointment of Officers-in-Charge. — The President shall appoint officers-in-charge for the
Office of the Regional Governor, Regional Vice Governor and Members of the Regional Legislative
Assembly who shall perform the functions pertaining to the said offices until the officials duly elected in
the May 2013 elections shall have qualified and assumed office.

We cannot see how the above-quoted provision has changed the basic structure of the ARMM regional
government. On the contrary, this provision clearly preserves the basic structure of the ARMM regional
government when it recognizes the offices of the ARMM regional government and directs the OICs who
shall temporarily assume these offices to "perform the functions pertaining to the said offices."

Unconstitutionality of the holdover provision

The petitioners are one in defending the constitutionality of Section 7(1), Article VII of RA No. 9054,
which allows the regional officials to remain in their positions in a holdover capacity. The petitioners
essentially argue that the ARMM regional officials should be allowed to remain in their respective
positions until the May 2013 elections since there is no specific provision in the Constitution which
prohibits regional elective officials from performing their duties in a holdover capacity.

The pertinent provision of the Constitution is Section 8, Article X which provides:

Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. [emphases ours]

On the other hand, Section 7(1), Article VII of RA No. 9054 provides:

Section 7. Terms of Office of Elective Regional Officials. – (1) Terms of Office. The terms of office of the
Regional Governor, Regional Vice Governor and members of the Regional Assembly shall be for a
period of three (3) years, which shall begin at noon on the 30th day of September next following the day
of the election and shall end at noon of the same date three (3) years thereafter. The incumbent
elective officials of the autonomous region shall continue in effect until their successors are elected and
qualified.

The clear wording of Section 8, Article X of the Constitution expresses the intent of the framers of the
Constitution to categorically set a limitation on the period within which all elective local officials can
occupy their offices. We have already established that elective ARMM officials are also local officials;
they are, thus, bound by the three-year term limit prescribed by the Constitution. It, therefore, becomes
irrelevant that the Constitution does not expressly prohibit elective officials from acting in a holdover
capacity. Short of amending the Constitution, Congress has no authority to extend the three-year term
limit by inserting a holdover provision in RA No. 9054. Thus, the term of three years for local officials
should stay at three (3) years, as fixed by the Constitution, and cannot be extended by holdover by
Congress.

Admittedly, we have, in the past, recognized the validity of holdover provisions in various laws. One
significant difference between the present case and these past cases is that while these past cases all
22 

refer to elective barangay or sangguniang kabataan officials whose terms of office are not explicitly

provided for in the Constitution, the present case refers to local elective officials - the ARMM Governor,
the ARMM Vice Governor, and the members of the Regional Legislative Assembly - whose terms fall
within the three-year term limit set by Section 8, Article X of the Constitution.

Even assuming that a holdover is constitutionally permissible, and there had been statutory basis for it
(namely Section 7, Article VII of RA No. 9054), the rule of holdover can only apply as an available
option where no express or implied legislative intent to the contrary exists; it cannot apply where such
contrary intent is evident. 23

Congress, in passing RA No. 10153 and removing the holdover option, has made it clear that it wants to
suppress the holdover rule expressed in RA No. 9054. Congress, in the exercise of its plenary
legislative powers, has clearly acted within its discretion when it deleted the holdover option, and this
Court has no authority to question the wisdom of this decision, absent any evidence of
unconstitutionality or grave abuse of discretion. It is for the legislature and the executive, and not this
Court, to decide how to fill the vacancies in the ARMM regional government which arise from the
legislature complying with the constitutional mandate of synchronization.

COMELEC has no authority to hold special elections

Neither do we find any merit in the contention that the Commission on Elections (COMELEC) is
sufficiently empowered to set the date of special elections in the ARMM. To recall, the Constitution has
merely empowered the COMELEC to enforce and administer all laws and regulations relative to the
conduct of an election. Although the legislature, under the Omnibus Election Code (Batas Pambansa
24 

Bilang [BP] 881), has granted the COMELEC the power to postpone elections to another date, this
power is confined to the specific terms and circumstances provided for in the law. Specifically, this
power falls within the narrow confines of the following provisions:

Section 5. Postponement of election. - When for any serious cause such as violence, terrorism, loss
or destruction of election paraphernalia or records, force majeure, and other analogous causes of
such a nature that the holding of a free, orderly and honest election should become impossible in any
political subdivision, the Commission, motu proprio or upon a verified petition by any interested party,
and after due notice and hearing, whereby all interested parties are afforded equal opportunity to be
heard, shall postpone the election therein to a date which should be reasonably close to the date
of the election not held, suspended or which resulted in a failure to elect but not later than thirty
days after the cessation of the cause for such postponement or suspension of the election or failure to
elect.

Section 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud, or other

analogous causes the election in any polling place has not been held on the date fixed, or had
been suspended before the hour fixed by law for the closing of the voting, or after the voting and
during the preparation and the transmission of the election returns or in the custody or canvass
thereof, such election results in a failure to elect, and in any of such cases the failure or suspension
of election would affect the result of the election, the Commission shall, on the basis of a verified
petition by any interested party and after due notice and hearing, call for the holding or continuation of
the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the
date of the election not held, suspended or which resulted in a failure to elect but not later than thirty
days after the cessation of the cause of such postponement or suspension of the election or failure to
elect. [emphases and underscoring ours]

As we have previously observed in our assailed decision, both Section 5 and Section 6 of BP 881
address instances where elections have already been scheduled to take place but do not occur or had
to be suspended because of unexpected and unforeseen circumstances, such as violence, fraud,
terrorism, and other analogous circumstances.

In contrast, the ARMM elections were postponed by law, in furtherance of the constitutional mandate of
synchronization of national and local elections. Obviously, this does not fall under any of the
circumstances contemplated by Section 5 or Section 6 of BP 881.

More importantly, RA No. 10153 has already fixed the date for the next ARMM elections and the
COMELEC has no authority to set a different election date.

Even assuming that the COMELEC has the authority to hold special elections, and this Court can
compel the COMELEC to do so, there is still the problem of having to shorten the terms of the newly
elected officials in order to synchronize the ARMM elections with the May 2013 national and local
elections. Obviously, neither the Court nor the COMELEC has the authority to do this, amounting as it
does to an amendment of Section 8, Article X of the Constitution, which limits the term of local officials
to three years.

President’s authority to appoint OICs

The petitioner in G.R. No. 197221 argues that the President’s power to appoint pertains only to
appointive positions and cannot extend to positions held by elective officials.

The power to appoint has traditionally been recognized as executive in nature. Section 16, Article VII of
25 

the Constitution describes in broad strokes the extent of this power, thus:

Section 16. The President shall nominate and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and those whom he
may be authorized by law to appoint. The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies,
commissions, or boards. [emphasis ours]

The 1935 Constitution contained a provision similar to the one quoted above. Section 10(3), Article VII
of the 1935 Constitution provides:

(3) The President shall nominate and with the consent of the Commission on Appointments, shall
appoint the heads of the executive departments and bureaus, officers of the Army from the rank of
colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the
Government whose appointments are not herein otherwise provided for, and those whom he may be
authorized by law to appoint; but the Congress may by law vest the appointment of inferior officers, in
the President alone, in the courts, or in the heads of departments. [emphasis ours]

The main distinction between the provision in the 1987 Constitution and its counterpart in the 1935
Constitution is the sentence construction; while in the 1935 Constitution, the various appointments the
President can make are enumerated in a single sentence, the 1987 Constitution enumerates the
various appointments the President is empowered to make and divides the enumeration in two
sentences. The change in style is significant; in providing for this change, the framers of the 1987
Constitution clearly sought to make a distinction between the first group of presidential appointments
and the second group of presidential appointments, as made evident in the following exchange:

MR. FOZ. Madame President x x x I propose to put a period (.) after "captain" and x x x delete "and all"
and substitute it with HE SHALL ALSO APPOINT ANY.

MR. REGALADO. Madam President, the Committee accepts the proposed amendment because it
makes it clear that those other officers mentioned therein do not have to be confirmed by the
Commission on Appointments. 26

The first group of presidential appointments, specified as the heads of the executive departments,
ambassadors, other public ministers and consuls, or officers of the Armed Forces, and other officers
whose appointments are vested in the President by the Constitution, pertains to the appointive officials
who have to be confirmed by the Commission on Appointments.

The second group of officials the President can appoint are "all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be authorized by law to
appoint." The second sentence acts as the "catch-all provision" for the President’s appointment power,
27 

in recognition of the fact that the power to appoint is essentially executive in nature. The wide latitude
28 

given to the President to appoint is further demonstrated by the recognition of the President’s power to
appoint officials whose appointments are not even provided for by law. In other words, where there
are offices which have to be filled, but the law does not provide the process for filling them, the
Constitution recognizes the power of the President to fill the office by appointment.

Any limitation on or qualification to the exercise of the President’s appointment power should be strictly
construed and must be clearly stated in order to be recognized. Given that the President derives his
29 

power to appoint OICs in the ARMM regional government from law, it falls under the classification of
presidential appointments covered by the second sentence of Section 16, Article VII of the Constitution;
the President’s appointment power thus rests on clear constitutional basis.

The petitioners also jointly assert that RA No. 10153, in granting the President the power to appoint
OICs in elective positions, violates Section 16, Article X of the Constitution, which merely grants the
30 

President the power of supervision over autonomous regions.

This is an overly restrictive interpretation of the President’s appointment power. There is no

incompatibility between the President’s power of supervision over local governments and autonomous
regions, and the power granted to the President, within the specific confines of RA No. 10153, to
appoint OICs.

The power of supervision is defined as "the power of a superior officer to see to it that lower officers
perform their functions in accordance with law." This is distinguished from the power of control or "the
31 

power of an officer to alter or modify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former for the latter." 32

The petitioners’ apprehension regarding the President’s alleged power of control over the OICs is
rooted in their belief that the President’s appointment power includes the power to remove these
officials at will. In this way, the petitioners foresee that the appointed OICs will be beholden to the
President, and act as representatives of the President and not of the people.

Section 3 of RA No. 10153 expressly contradicts the petitioners’ supposition. The provision states:

Section 3. Appointment of Officers-in-Charge. — The President shall appoint officers-in-charge for the
Office of the Regional Governor, Regional Vice Governor and Members of the Regional Legislative
Assembly who shall perform the functions pertaining to the said offices until the officials duly elected in
the May 2013 elections shall have qualified and assumed office.

The wording of the law is clear. Once the President has appointed the OICs for the offices of the
Governor, Vice Governor and members of the Regional Legislative Assembly, these same officials will
remain in office until they are replaced by the duly elected officials in the May 2013 elections. Nothing in
this provision even hints that the President has the power to recall the appointments he already made.
Clearly, the petitioners’ fears in this regard are more apparent than real.

RA No. 10153 as an interim measure

We reiterate once more the importance of considering RA No. 10153 not in a vacuum, but within the
context it was enacted in. In the first place, Congress enacted RA No. 10153 primarily to heed the
constitutional mandate to synchronize the ARMM regional elections with the national and local
elections. To do this, Congress had to postpone the scheduled ARMM elections for another date,
leaving it with the problem of how to provide the ARMM with governance in the intervening
period, between the expiration of the term of those elected in August 2008 and the assumption to office
– twenty-one (21) months away – of those who will win in the synchronized elections on May 13, 2013.

In our assailed Decision, we already identified the three possible solutions open to Congress to address
the problem created by synchronization – (a) allow the incumbent officials to remain in office after the
expiration of their terms in a holdover capacity; (b) call for special elections to be held, and shorten the
terms of those to be elected so the next ARMM regional elections can be held on May 13, 2013; or (c)
recognize that the President, in the exercise of his appointment powers and in line with his power of
supervision over the ARMM, can appoint interim OICs to hold the vacated positions in the ARMM
regional government upon the expiration of their terms. We have already established the
unconstitutionality of the first two options, leaving us to consider the last available option.

In this way, RA No. 10153 is in reality an interim measure, enacted to respond to the adjustment that
synchronization requires. Given the context, we have to judge RA No. 10153 by the standard of
reasonableness in responding to the challenges brought about by synchronizing the ARMM elections
with the national and local elections. In other words, "given the plain unconstitutionality of providing
for a holdover and the unavailability of constitutional possibilities for lengthening or shortening
the term of the elected ARMM officials, is the choice of the President’s power to appoint – for a
fixed and specific period as an interim measure, and as allowed under Section 16, Article VII of
the Constitution – an unconstitutional or unreasonable choice for Congress to make?" 33

We admit that synchronization will temporarily disrupt the election process in a local community, the
ARMM, as well as the community’s choice of leaders. However, we have to keep in mind that the
adoption of this measure is a matter of necessity in order to comply with a mandate that the Constitution
itself has set out for us. Moreover, the implementation of the provisions of RA No. 10153 as an interim
measure is comparable to the interim measures traditionally practiced when, for instance, the President
appoints officials holding elective offices upon the creation of new local government units.

The grant to the President of the power to appoint OICs in place of the elective members of the
Regional Legislative Assembly is neither novel nor innovative. The power granted to the President, via
RA No. 10153, to appoint members of the Regional Legislative Assembly is comparable to the power
granted by BP 881 (the Omnibus Election Code) to the President to fill any vacancy for any cause in the
Regional Legislative Assembly (then called the Sangguniang Pampook). 34

Executive is not bound by the principle of judicial courtesy

The petitioners in G.R. No. 197280, in their Manifestation and Motion dated December 21, 2011,
question the propriety of the appointment by the President of Mujiv Hataman as acting Governor and
Bainon Karon as acting Vice Governor of the ARMM. They argue that since our previous decision was
based on a close vote of 8-7, and given the numerous motions for reconsideration filed by the parties,
the President, in recognition of the principle of judicial courtesy, should have refrained from
implementing our decision until we have ruled with finality on this case.

We find the petitioners’ reasoning specious.

Firstly, the principle of judicial courtesy is based on the hierarchy of courts and applies only to lower
courts in instances where, even if there is no writ of preliminary injunction or TRO issued by a higher
court, it would be proper for a lower court to suspend its proceedings for practical and ethical
considerations. In other words, the principle of "judicial courtesy" applies where there is a strong
35 

probability that the issues before the higher court would be rendered moot and moribund as a result of
the continuation of the proceedings in the lower court or court of origin. Consequently, this principle
36 

cannot be applied to the President, who represents a co-equal branch of government. To suggest
otherwise would be to disregard the principle of separation of powers, on which our whole system of
government is founded upon.

Secondly, the fact that our previous decision was based on a slim vote of 8-7 does not, and cannot,
have the effect of making our ruling any less effective or binding. Regardless of how close the voting is,
so long as there is concurrence of the majority of the members of the en banc who actually took part in
the deliberations of the case, a decision garnering only 8 votes out of 15 members is still a decision of
37 

the Supreme Court en banc and must be respected as such. The petitioners are, therefore, not in any
position to speculate that, based on the voting, "the probability exists that their motion for
reconsideration may be granted." 38

Similarly, the petitioner in G.R. No. 197282, in his Very Urgent Motion to Issue Clarificatory Resolution,
argues that since motions for reconsideration were filed by the aggrieved parties challenging our
October 18, 2011 decision in the present case, the TRO we initially issued on September 13, 2011
should remain subsisting and effective. He further argues that any attempt by the Executive to
implement our October 18, 2011 decision pending resolution of the motions for reconsideration "borders
on disrespect if not outright insolence" to this Court.
39 

In support of this theory, the petitioner cites Samad v. COMELEC, where the Court held that while it
40 

had already issued a decision lifting the TRO, the lifting of the TRO is not yet final and executory, and
can also be the subject of a motion for reconsideration. The petitioner also cites the minute resolution
issued by the Court in Tolentino v. Secretary of Finance, where the Court reproached the
41 

Commissioner of the Bureau of Internal Revenue for manifesting its intention to implement the decision
of the Court, noting that the Court had not yet lifted the TRO previously issued.
42

We agree with the petitioner that the lifting of a TRO can be included as a subject of a motion for
reconsideration filed to assail our decision. It does not follow, however, that the TRO remains effective
until after we have issued a final and executory decision, especially considering the clear wording of the
dispositive portion of our October 18, 2011 decision, which states:

WHEREFORE, premises considered, we DISMISS the consolidated petitions assailing the validity of
RA No. 10153 for lack of merit, and UPHOLD the constitutionality of this law. We likewise LIFT the
temporary restraining order we issued in our Resolution of September 13, 2011. No costs. (emphases
43 

ours)

In this regard, we note an important distinction between Tolentino and the present case. While it may be
true that Tolentino and the present case are similar in that, in both cases, the petitions assailing the
challenged laws were dismissed by the Court, an examination of the dispositive portion of the decision
in Tolentino reveals that the Court did not categorically lift the TRO. In sharp contrast, in the present
case, we expressly lifted the TRO issued on September 13, 2011.  There is, therefore, no legal
1âwphi1

impediment to prevent the President from exercising his authority to appoint an acting ARMM Governor
and Vice Governor as specifically provided for in RA No. 10153.

Conclusion

As a final point, we wish to address the bleak picture that the petitioner in G.R. No. 197282 presents in
his motion, that our Decision has virtually given the President the power and authority to appoint
672,416 OICs in the event that the elections of barangay and Sangguniang Kabataan officials are
postponed or cancelled.

We find this speculation nothing short of fear-mongering.

This argument fails to take into consideration the unique factual and legal circumstances which led to
the enactment of RA No. 10153. RA No. 10153 was passed in order to synchronize the ARMM
elections with the national and local elections. In the course of synchronizing the ARMM elections with
the national and local elections, Congress had to grant the President the power to appoint OICs in the
ARMM, in light of the fact that: (a) holdover by the incumbent ARMM elective officials is legally
impermissible; and (b) Congress cannot call for special elections and shorten the terms of elective local
officials for less than three years.

Unlike local officials, as the Constitution does not prescribe a term limit for barangay and Sangguniang
Kabataan officials, there is no legal proscription which prevents these specific government officials from
continuing in a holdover capacity should some exigency require the postponement of barangay or
Sangguniang Kabataan elections. Clearly, these fears have neither legal nor factual basis to stand on.

For the foregoing reasons, we deny the petitioners’ motions for reconsideration.

WHEREFORE, premises considered, we DENY with FINALITY the motions for reconsideration for lack
of merit and UPHOLD the constitutionality of RA No. 10153.

SO ORDERED.

ARTURO D. BRION
Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 187451               August 29, 2012

JESUS VIRTUCIO, represented by ABDON VIRTUCIO, Petitioner,

vs.
JOSE ALEGARBES, Respondent.

PERALTA, J., Acting Chairperson,*

VILLARAMA, JR.,**

PEREZ,***

DECISION

MENDOZA, J.:

This petition for review on certiorari under Rule 45 seeks to reverse and set aside the February 25,
2009 Decision of the Court of Appeals (CA), in CA-G.R. CV No. 72613, reversing and setting aside the
1 

February 19, 2001 Decision of the Regional Trial Court, Branch 1, Isabela, Basi Ian (RTC), in Civil Case
2 

No. 685-627, an action for "Recovery of Possession and Ownership with Preliminary Injunction."

The Facts

Respondent Jose Alegarbes (Alegarbes) filed Homestead Application No. V-33203 (E-V-49150) for a

24-hectare tract of unsurveyed land situated in Bañas, Lantawan, Basilan in 1949. His application was
approved on January 23, 1952. In 1955, however, the land was subdivided into three (3) lots – Lot Nos.
3 

138,139 and 140, Pls-19 - as a consequence of a public land subdivision. Lot 139 was allocated to
Ulpiano Custodio (Custodio), who filed Homestead Application No. 18-4493 (E-18-2958). Lot 140 was
allocated to petitioner Jesus Virtucio (Virtucio), who filed Homestead Application No. 18-4421 (E-18-
2924).4

Alegarbes opposed the homestead applications filed by Custodio and Virtucio, claiming that his
approved application covered the whole area, including Lot Nos. 139 and 140. 5

On October 30, 1961, the Director of Lands rendered a decision denying Alegarbes' protest and
amending the latter's application to exclude Lots 139 and 140. Only Lot 138 was given due course. The
applications of Custodio and Virtucio for Lots 139 and 140, respectively, were likewise given due
course.6

Alegarbes then appealed to the Secretary of Agriculture and Natural Resources, who dismissed his
appeal on July 28, 1967. He then sought relief from the Office of the President (OP), which, however,
affirmed the dismissal order of the Secretary of Agriculture and Natural Resources in a decision, dated
October 25, 1974. Alegarbes moved for a reconsideration, but the motion was subsequently denied. 7

On May 11, 1989, an order of execution was issued by the Lands Management Bureau of the
8 

Department of Environment and Natural Resources to enforce the decision of the OP. It ordered
Alegarbes and all those acting in his behalf to vacate the subject lot, but he refused.

On September 26, 1997, Virtucio then filed a complaint for "Recovery of Possession and Ownership
9 

with Preliminary Injunction" before the RTC.

In his Answer, Alegarbes claimed that the decision of the Bureau of Lands was void ab initio
10 

considering that the Acting Director of Lands acted without jurisdiction and in violation of the provisions
of the Public Land Act. Alegarbes argued that the said decision conferred no rights and imposed no
duties and left the parties in the same position as they were before its issuance. He further alleged that
the patent issued in favor of Virtucio was procured through fraud and deceit, thus, void ab initio.

Alegarbes further argued, by way of special and/or affirmative defenses, that the approval of his
homestead application on January 23, 1952 by the Bureau of Lands had already attained finality and
could not be reversed, modified or set aside. His possession of Lot Nos. 138, 139 and 140 had been
open, continuous, peaceful and uninterrupted in the concept of an owner for more than 30 years and
had acquired such lots by acquisitive prescription.

In his Amended and Supplemental Answer, Alegarbes also averred that his now deceased brother,
11 

Alejandro Alegarbes, and the latter's family helped him develop Lot 140 in 1955. Alejandro and his
family, as well as Alegarbes' wife and children, had been permanently occupying the said lot and,
introducing permanent improvements thereon since 1960.

The RTC Ruling

The RTC rendered its decision on February 19, 2001, favoring Virtucio. The decretal portion of which
reads:

WHEREFORE, upon the merit of this case, this court finds for the plaintiff and against the defendant by:

1. Ordering the defendant and all those acting in his behalf to vacate Lot No. 140, Pls-19, located at
Lower Bañas, Lantawan, Basilan and surrender the possession and ownership thereof to plaintiff;

2. Ordering the defendant to pay the plaintiff the amount of Fifteen Thousand Pesos (₱ 15,000.00) as
attorney's fees and another Ten Thousand Pesos (₱ 10,000.00) as expenses for litigation; and

3. To pay the cost of the suit in the amount of Five Hundred Pesos (₱500.00).

SO ORDERED. 12

Not in conformity, Alegarbes appealed his case before the CA.

The CA Ruling

On February 25, 2009, the CA promulgated its decision declaring Alegarbes as the owner of Lot No.
140, Pls-19, thereby reversing and setting aside the decision of the RTC. The CA ruled that Alegarbes
became ipso jure owner of Lot 140 and, therefore, entitled to retain possession of it.

Consequently, the awards of attorney's fees, litigation expenses and costs of suit were deleted.

In so ruling, the CA explained that even if the decision to approve Virtucio's homestead application over
Lot 140 had become final, Alegarbes could still acquire the said lot by acquisitive prescription. The
decisions on the issues of the approval of Virtucio's homestead application and its validity were
impertinent as Alegarbes had earlier put in issue the matter of ownership of Lot 140 which he claimed
by virtue of adverse possession.

The CA also found reversible error on the part of the RTC in disregarding the evidence before it and
relying entirely upon the decisions of the administrative bodies, none of which touched upon the issue
of Alegarbes' open, continuous and exclusive possession of over thirty (30) years of an alienable land.
The CA held that the Director of Lands, the Secretary of Agriculture and Natural Resources and the OP
did not determine whether Alegarbes' possession of the subject property had ipso jure segregated Lot
140 from the mass of public land and, thus, was beyond their jurisdiction.

Aggrieved, Virtucio filed this petition.

ISSUES

Virtucio assigned the following errors in seeking the reversal of the assailed decision of the CA, to wit:

1. The Court of Appeals erred in setting aside the judgment of the trial court, which awarded the
lot in question to the respondent by virtue of acquisitive prescription and ordered herein
petitioner to surrender the ownership and possession of the same to them. 13

2. The Court of Appeals gravely erred in disregarding the decision in CA-G.R. CV-26286 for
Recovery of Possession and Ownership, Custodio vs. Alegarbes which contains same factual
circumstances as in this case and ruled against JOSE ALEGARBES. 14

3. The Court of Appeals erred in deleting the award of attorney's fees to the petitioner. 15

The lone issue in this case is whether or not Alegarbes acquired ownership over the subject property by
acquisitive prescription.

Ruling of the Court

The petition must fail.

Indeed, it is fundamental that questions of fact are not reviewable in petitions for review
on certiorari under Rule 45 of the Rules of Court. Only questions of law distinctly set forth shall be
raised in the petition.
16

Here, the main issue is the alleged acquisition of ownership by Alegarbes through acquisitive
prescription and the character and length of possession of a party over a parcel of land subject of
controversy is a factual issue. The Court, however, is not precluded from reviewing facts when the
17 

case falls within the recognized exceptions, to wit:

(a) When the findings are grounded entirely on speculation, surmises, or conjectures;

(b) When the inference made is manifestly mistaken, absurd, or impossible;

(c) When there is grave abuse of discretion;

(d) When the judgment is based on a misapprehension of facts;

(e) When the findings of facts are conflicting;

(f) When in making its findings the CA went beyond the issues of the case, or its findings are contrary to
the admissions of both the appellant and the appellee;

(g) When the CA’s findings are contrary to those by the trial court;

(h) When the findings are conclusions without citation of specific evidence on which they are based;

(i) When the facts set forth in the petition as well as in the petitioner’s main and reply briefs are not
disputed by the respondent;

(j) When the findings of fact are premised on the supposed absence of evidence and contradicted by
the evidence on record; or

(k) When the CA manifestly overlooked certain relevant facts not disputed by the parties, which, if
properly considered, would justify a different conclusion. [Emphasis supplied]
18 

In the case at bench, the findings and conclusions of the CA are apparently contrary to those of the
RTC, hence, the need to review the facts in order to arrive at the proper conclusion.

On Acquisitive Prescription
Virtucio insists that the period of acquisitive prescription was interrupted on October 30, 1961 (or in
1954 when Alegarbes filed the protest) when the Director of Lands rendered a decision giving due
course to his homestead application and that of Ulpiano Custodio. Virtucio further claims that since
1954, several extrajudicial demands were also made upon Alegarbes demanding that he vacate said
lot. Those demands constitute the "extrajudicial demand" contemplated in Article 1155, thus, tolling the
period of acquisitive prescription. 19

Article 1106 of the New Civil Code, in relation to its Article 712, provides that prescription is a mode of
acquiring ownership through the lapse of time in the manner and under the conditions laid down by law.
Under the same law, it states that acquisitive prescription may either be ordinary or
extraordinary. Ordinary acquisitive prescription requires possession of things in good faith and with just
20 

title for a period of ten years, while extraordinary acquisitive prescription requires uninterrupted adverse
21 

possession of thirty years, without need of title or of good faith. 22

There are two kinds of prescription provided in the Civil Code. One is acquisitive, that is, the acquisition
of a right by the lapse of time as expounded in par. 1, Article 1106. Other names for acquisitive
prescription are adverse possession and usucapcion. The other kind is extinctive prescription whereby
rights and actions are lost by the lapse of time as defined in Article 1106 and par. 2, Article 1139.
Another name for extinctive prescription is litigation of action. These two kinds of prescription should
23 

not be interchanged.

Article 1155 of the New Civil Code refers to the interruption of prescription of actions. Interruption of
acquisitive prescription, on the other hand, is found in Articles 1120-1125 of the same Code. Thus,
Virtucio’s reliance on Article 1155 for purposes of tolling the period of acquisitive prescription is
misplaced. The only kinds of interruption that effectively toll the period of acquisitive prescription are
natural and civil interruption.
24

Civil interruption takes place with the service of judicial summons to the possessor. When no action is
25 

filed, then there is no occasion to issue a judicial summons against the respondents. The period of
acquisitive prescription continues to run.

In this case, Virtucio claims that the protest filed by Alegarbes against his homestead application
interrupted the thirty (30)-year period of acquisitive prescription. The law, as well as jurisprudence,
however, dictates that only a judicial summons can effectively toll the said period.

In the case of Heirs of Marcelina Azardon-Crisologo v. Rañon, the Court ruled that a mere Notice of
26 

Adverse Claim did not constitute an effective interruption of possession. In the case of Heirs of
Bienvenido and Araceli Tanyag v. Gabriel, which also cited the Rañon Case, the Court stated that the
27 

acts of declaring again the property for tax purposes and obtaining a Torrens certificate of title in one's
name cannot defeat another's right of ownership acquired through acquisitive prescription. 28

In the same vein, a protest filed before an administrative agency and even the decision resulting from it
cannot effectively toll the running of the period of acquisitive prescription. In such an instance, no civil
interruption can take place. Only in cases filed before the courts may judicial summons be issued and,
thus, interrupt possession. Records show that it was only in 1997 when Virtucio filed a case before the
RTC. The CA was, therefore, correct in ruling that Alegarbesbecame ipso jure owner of Lot 140 entitling
him to retain possession of it because he was in open, continuous and exclusive possession for over
thirty (30) years of alienable public land.Virtucio emphasizes that the CA erred in disregarding the
decisions of the administrative agencies which amended Alegarbes' homestead application excluding
Lot 140 and gave due course to his own application for the said lot, which decisions were affirmed by
the RTC.

Well-settled is the rule that factual findings of the lower courts are entitled to great weight and respect
on appeal and, in fact, are accorded finality when supported by substantial evidence on the record. It 29 

appears, however, that the conclusion made by the RTC was not substantially supported. Even the
RTC itself noted in its decision:

The approval of a Homestead Application merely authorizes the applicant to take possession of the
land so that he could comply with the requirements prescribed by law before a final patent could be
issued in his favor – what divests the government of title to the land is the issuance of a patent and its
subsequent registration with the Register of Deeds. 30

A perusal of the records would reveal that there was no issuance of any patent in favor of either parties.
This simply means that the land subject of the controversy remains to be in the name of the State.
Hence, neither Virtucio nor Alegarbes can claim ownership. There was, therefore, no substantial and
legal basis for the RTC to declare that Virtucio was entitled to possession and ownership of Lot 140.

It can be argued that the lower court had the decisions of the administrative agencies, which ultimately
attained finality, as legal bases in ruling that Virtucio had the right of possession and ownership. In fact,
the Department of Environment and Natural Resources (DENR) even issued the Order of Execution on 31 

May 11, 1989 ordering Alegarbes to vacate Lot 140 and place Virtucio in peaceful possession of it. The
CA, however, was correct in finding that:

But appellant had earlier put in issue the matter of ownership of Lot 140 which he claims by virtue of
adverse possession. On this issue, the cited decisions are impertinent. Even if the decision to approve
appellee's homestead application over Lot 140 had become final, appellant could still acquire the said
lot by acquisitive prescription.
32

In the case of Heirs of Gamos v. Heirs of Frando, the Court ruled that the mere application for a patent,
33 

coupled with the fact of exclusive, open, continuous and notorious possession for the required period, is
sufficient to vest in the applicant the grant applied for. It likewise cited the cases of Susi v. Razon and
34  35 

Pineda v. CA, where the Court ruled that the possession of a parcel of agricultural land of the public
36 

domain for the prescribed period of 30 years ipso jure converts the lot into private property. 37

In this case, Alegarbes had applied for homestead patent as early as 1949. He had been in exclusive,
open, continuous and notorious possession of Lot 140 for at least 30 years. By the time the DENR
issued its order of execution in 1989, Alegarbes had Lot 140 in his possession for more than 30 years.
Even more so when Virtucio filed the complaint before the RTC in 1997, Alegarbes was already in
possession of the subject property for forty-eight (48) years.

The CA correctly observed that the RTC erred in disregarding the evidence before it and relying entirely
upon the decisions of the Director of Lands, the Secretary of Agriculture and Natural Resources and the
OP, which never touched the issue of whether Alegarbes’ open, continuous and exclusive possession
of over thirty (30) years of alienable land had ipso jure segregated Lot 140 from the mass of public land
and beyond the jurisdiction of these agencies. 38

When the CA ruled that the RTC was correct in relying on the abovementioned decisions, it merely
recognized the primary jurisdiction of these administrative agencies. It was of the view that the RTC
was not correct in the other aspects of the case. Thus, it declared Alegarbes as owner ipso jure of Lot
140 and entitled to retain possession of it. There is no reason for the Court to disturb these findings of
the CA as they were supported by substantial evidence, hence, are conclusive and binding upon this
Court.39

On the CA Decision involving a similar case

Virtucio insists that the CA gravely erred in disregarding its decision in Custodio v. Alegarbes, CA-G.R.
CV 26286, for Recovery of Possession and Ownership, which involved the same factual circumstances
and ruled against Alegarbes.

It must be noted that the subject property in the said case was Lot 139 allocated to Custodio and that
Virtucio was not a party to that case. The latter cannot enjoy whatever benefits said favorable judgment
may have had just because it involved similar factual circumstances. The Court also found from the
records that the period of acquisitive prescription in that case was effectively interrupted by Custodio's
filing of a complaint, which is wanting in this case.

Moreover, it is settled that a decision of the CA does not establish judicial precedent. "The principle
40 

of stare decisis enjoins adherence by lower courts to doctrinal rules established by this Court in its final
decisions. It is based on the principle that once a question of law has been examined and decided, it
should be deemed settled and closed to further argument. " 41

The Court agrees with the position of Alegarbes that by Virtucio's insistence that it was erroneous for
the CA to disregard its earlier decision in CA-G.R. CV 26286, he, in effect, calls upon this Court to
adhere to that decision by invoking the stare decisis principle, which is not legally possible because only
final decisions of this Court are considered precedents. 42

In view of the foregoing, the Court need not dwell on the complaint of Virtucio with regard to the deletion
of the award of attorney's fees in his favor. It is ludicrous for the CA to order Alegarbes to pay attorney's
fees, as a measure of damages, and costs, after finding him to have acquired ownership over the
property by acquisitive prescription.

WHEREFORE, the petition is DENIED.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 199310               February 19, 2014

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
REMMAN ENTERPRISES, INC., represented by RONNIE P. INOCENCIO, Respondent.

DECISION

REYES, J.:

Before this Court is a petition for review on certiorari  under Rule 45 of the Rules of Court seeking to
1

annul and set aside the Decision  dated November 10, 2011 of the Court of Appeals (CA) in CA-G.R.
2

CV No. 90503. The CA affirmed the Decision  dated May 16, 2007 of the Regional Trial Court (RTC) of
3

Pasig City, Branch 69, in Land Registration Case No. N-11465.

The Facts

On December 3, 2001, Remman Enterprises, Inc. (respondent), filed an application  with the RTC for
4

judicial confirmation of title over two parcels of land situated in Barangay Napindan, Taguig, Metro
Manila, identified as Lot Nos. 3068 and 3077, Mcadm-590-D, Taguig Cadastre, with an area of 29,945
square meters and 20,357 sq m, respectively.

On December 13, 2001, the RTC issued the Order  finding the respondent’s application for registration
5

sufficient in form and substance and setting it for initial hearing on February 21, 2002. The scheduled
initial hearing was later reset to May 30, 2002.  The Notice of Initial Hearing was published in the Official
6

Gazette, April 1, 2002 issue, Volume 98, No. 13, pages 1631-1633  and in the March 21, 2002 issue of
7

People’s Balita,  a newspaper of general circulation in the Philippines. The Notice of Initial Hearing was
8

likewise posted in a conspicuous place on Lot Nos. 3068 and 3077, as well as in a conspicuous place
on the bulletin board of the City hall of Taguig, Metro Manila. 9

On May 30, 2002, when the RTC called the case for initial hearing, only the Laguna Lake Development
Authority (LLDA) appeared as oppositor. Hence, the RTC issued an order of general default except
LLDA, which was given 15 days to submit its comment/opposition to the respondent’s application for
registration.10

On June 4, 2002, the LLDA filed its Opposition  to the respondent’s application for registration,
11

asserting that Lot Nos. 3068 and 3077 are not part of the alienable and disposable lands of the public
domain. On the other hand, the Republic of the Philippines (petitioner), on July 16, 2002, likewise filed
its Opposition,  alleging that the respondent failed to prove that it and its predecessors-in-interest have
12

been in open, continuous, exclusive, and notorious possession of the subject parcels of land since June
12, 1945 or earlier.

Trial on the merits of the respondent’s application ensued thereafter.

The respondent presented four witnesses: Teresita Villaroya, the respondent’s corporate secretary;
Ronnie Inocencio, an employee of the respondent and the one authorized by it to file the application for
registration with the RTC; Cenon Cerquena (Cerquena), the caretaker of the subject properties since
1957; and Engineer Mariano Flotildes (Engr. Flotildes), a geodetic engineer hired by the respondent to
conduct a topographic survey of the subject properties.

For its part, the LLDA presented the testimonies of Engineers Ramon Magalonga (Engr. Magalonga)
and Christopher A. Pedrezuela (Engr. Pedrezuela), who are both geodetic engineers employed by the
LLDA.

Essentially, the testimonies of the respondent’s witnesses showed that the respondent and its
predecessors-in-interest have been in open, continuous, exclusive, and notorious possession of the
said parcels of land long before June 12, 1945. The respondent purchased Lot Nos. 3068 and 3077
from Conrado Salvador (Salvador) and Bella Mijares (Mijares), respectively, in 1989. The subject
properties were originally owned and possessed by Veronica Jaime (Jaime), who cultivated and planted
different kinds of crops in the said lots, through her caretaker and hired farmers, since 1943. Sometime
in 1975, Jaime sold the said parcels of land to Salvador and Mijares, who continued to cultivate the lots
until the same were purchased by the respondent in 1989.

The respondent likewise alleged that the subject properties are within the alienable and disposable
lands of the public domain, as evidenced by the certifications issued by the Department of Environment
and Natural Resources (DENR).

In support of its application, the respondent, inter alia, presented the following documents: (1) Deed of
Absolute Sale dated August 28, 1989 executed by Salvador and Mijares in favor of the respondent;  (2) 13

survey plans of the subject properties;  (3) technical descriptions of the subject properties;  (4)
14 15

Geodetic Engineer’s Certificate;  (5) tax declarations of Lot Nos. 3068 and 3077 for 2002;  and (6)
16 17

certifications dated December 17, 2002, issued by Corazon D. Calamno (Calamno), Senior Forest
Management Specialist of the DENR, attesting that Lot Nos. 3068 and 3077 form part of the alienable
and disposable lands of the public domain. 18

On the other hand, the LLDA alleged that the respondent’s application for registration should be denied
since the subject parcels of land are not part of the alienable and disposable lands of the public domain;
it pointed out that pursuant to Section 41(11) of Republic Act No. 4850  (R.A. No. 4850), lands,
19

surrounding the Laguna de Bay, located at and below the reglementary elevation of 12.50 meters are
public lands which form part of the bed of the said lake. Engr. Magalonga, testifying for the oppositor
LLDA, claimed that, upon preliminary evaluation of the subject properties, based on the topographic
map of Taguig, which was prepared using an aerial survey conducted by the then Department of
National Defense-Bureau of Coast in April 1966, he found out that the elevations of Lot Nos. 3068 and
3077 are below 12.50 m. That upon actual area verification of the subject properties on September 25,
2002, Engr. Magalonga confirmed that the elevations of the subject properties range from 11.33 m to
11.77 m.

On rebuttal, the respondent presented Engr. Flotildes, who claimed that, based on the actual
topographic survey of the subject properties he conducted upon the request of the respondent, the
elevations of the subject properties, contrary to LLDA’s claim, are above 12.50 m. Particularly, Engr.
Flotildes claimed that Lot No. 3068 has an elevation ranging from 12.60 m to 15 m while the elevation
of Lot No. 3077 ranges from 12.60 m to 14.80 m.

The RTC Ruling

On May 16, 2007, the RTC rendered a Decision,  which granted the respondent’s application for
20

registration of title to the subject properties, viz:

WHEREFORE, premises considered, judgment is rendered confirming the title of the applicant
Remman Enterprises Incorporated over a parcels of land [sic] consisting of 29,945 square meters (Lot
3068) and 20,357 (Lot 3077) both situated in Brgy. Napindan, Taguig, Taguig,

Metro Manila more particularly described in the Technical Descriptions Ap-04-003103 and Swo-00-
001769 respectively and ordering their registration under the Property Registration Decree in the name
of Remman Enterprises Incorporated.
SO ORDERED. 21

The RTC found that the respondent was able to prove that the subject properties form part of the
alienable and disposable lands of the public domain. The RTC opined that the elevations of the subject
properties are very much higher than the reglementary elevation of 12.50 m and, thus, not part of the
bed of Laguna Lake. The RTC pointed out that LLDA’s claim that the elevation of the subject properties
is below 12.50 m is hearsay since the same was merely based on the topographic map that was
prepared using an aerial survey on March 2, 1966; that nobody was presented to prove that an aerial
survey was indeed conducted on March 2, 1966 for purposes of gathering data for the preparation of
the topographic map.

Further, the RTC posited that the elevation of a parcel of land does not always remain the same; that
the elevations of the subject properties may have already changed since 1966 when the supposed
aerial survey, from which the topographic map used by LLDA was based, was conducted. The RTC
likewise faulted the method used by Engr. Magalonga in measuring the elevations of the subject
properties, pointing out that:

Further, in finding that the elevation of the subject lots are below 12.5 meters, oppositor’s witness
merely compared their elevation to the elevation of the particular portion of the lake dike which he used
as his [benchmark] or reference point in determining the elevation of the subject lots. Also, the elevation
of the said portion of the lake dike that was then under the construction by FF Cruz was allegedly 12.79
meters and after finding that the elevation of the subject lots are lower than the said [benchmark] or
reference point, said witness suddenly jumped to a conclusion that the elevation was below 12.5
meters. x x x.

Moreover, the finding of LLDA’s witness was based on hearsay as said witness admitted that it was
DPWH or the FF Cruz who determined the elevation of the portion of the lake dike which he used as the
[benchmark] or reference point in determining the elevation of the subject lots and that he has no
personal knowledge as to how the DPWH and FF Cruz determined the elevation of the said
[benchmark] or reference point and he only learn[ed] that its elevation is 12.79 meters from the
information he got from FF Cruz. 22

Even supposing that the elevations of the subject properties are indeed below 12.50 m, the RTC opined
that the same could not be considered part of the bed of Laguna Lake. The RTC held that, under
Section 41(11) of R.A. No. 4850, Laguna Lake extends only to those areas that can be covered by the
lake water when it is at the average annual maximum lake level of 12.50 m. Hence, the RTC averred,
only those parcels of land that are adjacent to and near the shoreline of Laguna Lake form part of its
bed and not those that are already far from it, which could not be reached by the lake water. The RTC
pointed out that the subject properties are more than a kilometer away from the shoreline of Laguna
Lake; that they are dry and waterless even when the waters of Laguna Lake is at its maximum level.
The RTC likewise found that the respondent was able to prove that it and its predecessors-in-interest
have been in open, continuous, exclusive, and notorious possession of the subject properties as early
as 1943.

The petitioner appealed the RTC Decision dated May 16, 2007 to the CA.

The CA Ruling

On November 10, 2011, the CA, by way of the assailed Decision,  affirmed the RTC Decision dated
23

May 16, 2007. The CA found that the respondent was able to establish that the subject properties are
part of the alienable and disposable lands of the public domain; that the same are not part of the bed of
Laguna Lake, as claimed by the petitioner. Thus:

The evidence submitted by the appellee is sufficient to warrant registration of the subject lands in its
name. Appellee’s witness Engr. Mariano Flotildes, who conducted an actual area verification of the
subject lots, ably proved that the elevation of the lowest portion of Lot No. 3068 is 12.6 meters and the
elevation of its highest portion is 15 meters. As to the other lot, it was found [out] that the elevation of
the lowest portion of Lot No. 3077 is also 12.6 meters and the elevation of its highest portion is 15
meters. Said elevations are higher than the reglementary elevation of 12.5 meters as provided for under
paragraph 11, Section 41 of R.A. No. 4850, as amended.

In opposing the instant application for registration, appellant relies merely on the Topographic Map
dated March 2, 1966, prepared by Commodore Pathfinder, which allegedly shows that the subject
parcels of land are so situated in the submerge[d] [lake water] of Laguna Lake. The said data was
gathered through aerial photography over the area of Taguig conducted on March 2, 1966. However,
nobody testified on the due execution and authenticity of the said document. As regards the testimony
of the witness for LLDA, Engr. Ramon Magalonga, that the subject parcels of land are below the 12.5
meter elevation, the same can be considered inaccurate aside from being hearsay considering his
admission that his findings were based merely on the evaluation conducted by DPWH and FF Cruz. x x
x.  (Citations omitted)
24

The CA likewise pointed out that the respondent was able to present certifications issued by the DENR,
attesting that the subject properties form part of the alienable and disposable lands of the public
domain, which was not disputed by the petitioner. The CA further ruled that the respondent was able to
prove, through the testimonies of its witnesses, that it and its predecessors-in-interest have been in
open, continuous, exclusive, and notorious possession of the subject properties prior to June 12, 1945.

Hence, the instant petition.

The Issue

The sole issue to be resolved by the Court is whether the CA erred in affirming the RTC Decision dated
May 16, 2007, which granted the application for registration filed by the respondent.

The Court’s Ruling

The petition is meritorious.

The petitioner maintains that the lower courts erred in granting the respondent’s application for
registration since the subject properties do not form part of the alienable and disposable lands of the
public domain. The petitioner insists that the elevations of the subject properties are below the
reglementary level of 12.50 m and, pursuant to Section 41(11) of R.A. No. 4850, are considered part of
the bed of Laguna Lake.

That the elevations of the subject properties are above the reglementary level of 12.50 m is a finding of
fact by the lower courts, which this Court, generally may not disregard. It is a long-standing policy of this
Court that the findings of facts of the RTC which were adopted and affirmed by the CA are generally
deemed conclusive and binding. This Court is not a trier of facts and will not disturb the factual findings
of the lower courts unless there are substantial reasons for doing so. 25

That the subject properties are not part of the bed of Laguna Lake, however, does not necessarily mean
that they already form part of the alienable and disposable lands of the public domain. It is still
incumbent upon the respondent to prove, with well-nigh incontrovertible evidence, that the subject
properties are indeed part of the alienable and disposable lands of the public domain. While deference
is due to the lower courts’ finding that the elevations of the subject properties are above the
reglementary level of 12.50 m and, hence, no longer part of the bed of Laguna Lake pursuant to Section
41(11) of R.A. No. 4850, the Court nevertheless finds that the respondent failed to substantiate its
entitlement to registration of title to the subject properties.

"Under the Regalian Doctrine, which is embodied in our Constitution, all lands of the public domain
belong to the State, which is the source of any asserted right to any ownership of land. All lands not
appearing to be clearly within private ownership are presumed to belong to the State. Accordingly,
public lands not shown to have been reclassified or released as alienable agricultural land, or alienated
to a private person by the State, remain part of the inalienable public domain. The burden of proof in
overcoming the presumption of State ownership of the lands of the public domain is on the person
applying for registration, who must prove that the land subject of the application is alienable or
disposable. To overcome this presumption, incontrovertible evidence must be presented to establish
that the land subject of the application is alienable or disposable."26

The respondent filed its application for registration of title to the subject properties under Section 14(1)
of Presidential Decree (P.D.) No. 1529 , which provides that:
27

Sec. 14. Who may apply. The following persons may file in the proper Court of First Instance an
application for registration of title to land, whether personally or through their duly authorized
representatives:

(1) Those who by themselves or through their predecessors-in interest have been in open, continuous,
exclusive and notorious possession and occupation of alienable and disposable lands of the public
domain under a bona fide claim of ownership since June 12, 1945, or earlier.

xxxx

Section 14(1) of P.D. No. 1529 refers to the judicial confirmation of imperfect or incomplete titles to
public land acquired under Section 48(b) of Commonwealth Act (C.A.) No. 141, or the Public Land Act,
as amended by P.D. No. 1073.  Under Section 14(1) of P.D. No. 1529, applicants for registration of title
28

must sufficiently establish: first, that the subject land forms part of the disposable and alienable lands of
the public domain; second, that the applicant and his predecessors-in-interest have been in open,
continuous, exclusive, and notorious possession and occupation of the same; and third, that it is under
a bona fide claim of ownership since June 12, 1945, or earlier. 29

The first requirement was not satisfied in this case. To prove that the subject property forms part of the
alienable and disposable lands of the public domain, the respondent presented two
certifications  issued by Calamno, attesting that Lot Nos. 3068 and 3077 form part of the alienable and
30

disposable lands of the public domain "under Project No. 27-B of Taguig, Metro Manila as per LC Map
2623, approved on January 3, 1968."

However, the said certifications presented by the respondent are insufficient to prove that the subject
properties are alienable and disposable. In Republic of the Philippines v. T.A.N. Properties, Inc.,  the 31

Court clarified that, in addition to the certification issued by the proper government agency that a parcel
of land is alienable and disposable, applicants for land registration must prove that the DENR Secretary
had approved the land classification and released the land of public domain as alienable and
disposable. They must present a copy of the original classification approved by the DENR Secretary
and certified as true copy by the legal custodian of the records. Thus:

Further, it is not enough for the PENRO or CENRO to certify that a land is alienable and disposable.
The applicant for land registration must prove that the DENR Secretary had approved the land
classification and released the land of the public domain as alienable and disposable, and that the land
subject of the application for registration falls within the approved area per verification through survey
by the PENRO or CENRO. In addition, the applicant for land registration must present a copy of the
original classification approved by the DENR Secretary and certified as a true copy by the legal
custodian of the official records. These facts must be established to prove that the land is alienable and
disposable. Respondent failed to do so because the certifications presented by respondent do not, by
themselves, prove that the land is alienable and disposable.  (Emphasis ours)
32

In Republic v. Roche,  the Court deemed it appropriate to reiterate the ruling in T.A.N. Properties, viz:
33

Respecting the third requirement, the applicant bears the burden of proving the status of the land. In
this connection, the Court has held that he must present a certificate of land classification status issued
by the Community Environment and Natural Resources Office (CENRO) or the Provincial Environment
and Natural Resources Office (PENRO) of the DENR. He must also prove that the DENR Secretary had
approved the land classification and released the land as alienable and disposable, and that it is within
the approved area per verification through survey by the CENRO or PENRO. Further, the applicant
must present a copy of the original classification approved by the DENR Secretary and certified as true
copy by the legal custodian of the official records. These facts must be established by the applicant to
prove that the land is alienable and disposable.

Here, Roche did not present evidence that the land she applied for has been classified as alienable or
disposable land of the public domain. She submitted only the survey map and technical description of
the land which bears no information regarding the land’s classification. She did not bother to establish
the status of the land by any certification from the appropriate government agency. Thus, it cannot be
said that she complied with all requisites for registration of title under Section 14(1) of P.D.
1529.  (Citations omitted and emphasis ours)
34

The DENR certifications that were presented by the respondent in support of its application for
registration are thus not sufficient to prove that the subject properties are indeed classified by the DENR
Secretary as alienable and disposable. It is still imperative for the respondent to present a copy of the
original classification approved by the DENR Secretary, which must be certified by the legal custodian
thereof as a true copy. Accordingly, the lower courts erred in granting the application for registration in
spite of the failure of the respondent to prove by well-nigh incontrovertible evidence that the subject
properties are alienable and disposable.

Nevertheless, the respondent claims that the Court’s ruling in T.A.N. Properties, which was
promulgated on June 26, 2008, must be applied prospectively, asserting that decisions of this Court
form part of the law of the land and, pursuant to Article 4 of the Civil Code, laws shall have no
retroactive effect. The respondent points out that its application for registration of title to the subject
properties was filed and was granted by the RTC prior to the Court’s promulgation of its ruling in T.A.N.
Properties. Accordingly, that it failed to present a copy of the original classification covering the subject
properties approved by the DENR Secretary and certified by the legal custodian thereof as a true copy,
the respondent claims, would not warrant the denial of its application for registration.

The Court does not agree.

Notwithstanding that the respondent’s application for registration was filed and granted by RTC prior to
the Court’s ruling in T.A.N. Properties, the pronouncements in that case may be applied to the present
case; it is not antithetical to the rule of non-retroactivity of laws pursuant to Article 4 of the Civil Code. It
is elementary that the interpretation of a law by this Court constitutes part of that law from the date it
was originally passed, since this Court’s construction merely establishes the contemporaneous
legislative intent that the interpreted law carried into effect.  "Such judicial doctrine does not amount to
35

the passage of a new law, but consists merely of a construction or interpretation of a pre-existing one." 36

Verily, the ruling in T.A.N. Properties was applied by the Court in subsequent cases notwithstanding
that the applications for registration were filed and granted by the lower courts prior to the promulgation
of T.A.N. Properties.

In Republic v. Medida,  the application for registration of the subject properties therein was filed on
37

October 22, 2004 and was granted by the trial court on June 21, 2006. Similarly, in Republic v.
Jaralve,  the application for registration of the subject property therein was filed on October 22, 1996
38

and was granted by the trial court on November 15, 2002. In the foregoing cases, notwithstanding that
the applications for registration were filed and granted by the trial courts prior to the promulgation of
T.A.N. Properties, this Court applied the pronouncements in T.A.N. Properties and denied the
applications for registration on the ground, inter alia, that the applicants therein failed to present a copy
of the original classification approved by the DENR Secretary and certified by the legal custodian
thereof as a true copy.

Anent the second and third requirements, the Court finds that the respondent failed to present sufficient
evidence to prove that it and its predecessors-in-interest have been in open, continuous, exclusive, and
notorious possession and occupation of the subject properties since June 12, 1945, or earlier.

To prove that it and its predecessors-in-interest have been in possession and occupation of the subject
properties since 1943, the respondent presented the testimony of Cerquena. Cerquena testified that the
subject properties were originally owned by Jaime who supposedly possessed and cultivated the same
since 1943; that sometime in 1975, Jaime sold the subject properties to Salvador and Mijares who, in
turn, sold the same to the respondent in 1989.

The foregoing are but unsubstantiated and self-serving assertions of the possession and occupation of
the subject properties by the respondent and its predecessors-in-interest; they do not constitute the
well-nigh incontrovertible evidence of possession and occupation of the subject properties required by
Section 14(1) of P.D. No. 1529. Indeed, other than the testimony of Cerquena, the respondent failed to
present any other evidence to prove the character of the possession and occupation by it and its
predecessors-in-interest of the subject properties.

For purposes of land registration under Section 14(1) of P.D. No. 1529, proof of specific acts of
ownership must be presented to substantiate the claim of open, continuous, exclusive, and notorious
possession and occupation of the land subject of the application. Applicants for land registration cannot
just offer general statements which are mere conclusions of law rather than factual evidence of
possession. Actual possession consists in the manifestation of acts of dominion over it of such a nature
as a party would actually exercise over his own property. 39

Although Cerquena testified that the respondent and its predecessors-in-interest cultivated the subject
properties, by planting different crops thereon, his testimony is bereft of any specificity as to the nature
of such cultivation as to warrant the conclusion that they have been indeed in possession and
occupation of the subject properties in the manner required by law. There was no showing as to the
number of crops that are planted in the subject properties or to the volume of the produce harvested
from the crops supposedly planted thereon.

Further, assuming ex gratia argumenti that the respondent and its predecessors-in-interest have indeed
planted crops on the subject properties, it does not necessarily follow that the subject properties have
been possessed and occupied by them in the manner contemplated by law. The supposed planting of
crops in the subject properties may only have amounted to mere casual cultivation, which is not the
possession and occupation required by law.

"A mere casual cultivation of portions of the land by the claimant does not constitute possession under
claim of ownership. For him, possession is not exclusive and notorious so as to give rise to a
presumptive grant from the state. The possession of public land, however long the period thereof may
have extended, never confers title thereto upon the possessor because the statute of limitations with
regard to public land does not operate against the state, unless the occupant can prove possession and
occupation of the same under claim of ownership for the required number of years." 40

Further, the Court notes that the tax declarations over the subject properties presented by the
respondent were only for 2002. The respondent failed to explain why, despite its claim that it acquired
the subject properties as early as 1989, and that its predecessors-in-interest have been in possession
of the subject property since 1943, it was only in 2002 that it started to declare the same for purposes of
taxation. "While tax declarations are not conclusive evidence of ownership, they constitute proof of
claim of ownership."  That the subject properties were declared for taxation purposes only in 2002 gives
41

rise to the presumption that the respondent claimed ownership or possession of the subject properties
starting that year. Likewise, no improvement or plantings were declared or noted in the said tax
declarations. This fact belies the claim that the respondent and its predecessors-in-interest, contrary to
Cerquena's testimony, have been in possession and occupation of the subject properties in the manner
required by law.

Having failed to prove that the subject properties form part of the alienable and disposable lands of the
public domain and that it and its predecessors-in-interest have been in open, continuous, exclusive, and
notorious possession and occupation of the same since June 12, 1945, or earlier, the respondent's
application for registration should be denied.1âwphi1

WHEREFORE, in consideration of the foregoing disquisitions, the instant petition is GRANTED. The
Decision dated November 10, 2011 of the Court of Appeals in CA-G.R. CV No. 90503, which affirmed
the Decision dated May 16, 2007 of the Regional Trial Court of Pasig City, Branch 69, in Land
Registration Case No. N-11465 is hereby REVERSED and SET ASIDE. The Application for
Registration of Remman Enterprises, Inc. in Land Registration Case No. N-11465 is DENIED for lack of
merit.

SO ORDERED.

BIENVENIDO L. REYES
Associate Justice

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 165287               September 14, 2011

ARMANDO BARCELLANO, Petitioner,
vs.
DOLORES BAÑAS, represented by her son and Attorney-in-fact CRISPINO
BERMILLO, Respondent.

DECISION

PEREZ, J.:

Before the Court is an appeal by certiorari1 from the Decision2 of the Fifteenth Division of the Court of
Appeals in CA-G.R. CV No. 67702 dated 26 February 2004, granting the petition of Dolores Bañas,
herein respondent, to reverse and set aside the Decision 3 of the lower court.

The dispositive portion of the assailed decision reads:

WHEREFORE, premises considered, the instant appeal is hereby GRANTED. The decision of the court
a quo is hereby REVERSED AND SET ASIDE and in its stead another one is rendered GRANTING to
petitioner-appellants the right to redeem the subject property for the amount of Php 60,000.00 within
thirty (30) days from the finality of this decision.

The facts as gathered by the court follow:

Respondent Bañas is an heir of Bartolome Bañas who owns in fee simple Lot 4485, PLS-722-D
situated in Hindi, Bacacay, Albay. Adjoining the said lot is the property of Vicente Medina (Medina),
covered by Original Certificate of Title No. VH-9094, with an area of 1,877 square meters. On 17 March
1997, Medina offered his lot for sale to the adjoining owners of the property, the heirs of Bartolome
Bañas, including herein respondent Dolores Bañas, Crispino Bermillo (Bermillo) and Isabela Bermillo-
Beruela (Beruela)4 Crispino Bermillo, as the representative of his family, agreed to the offer of Medina,
the sale to take place after the harvest season.5

On 3 April 1997, Medina sold the property to herein petitioner Armando Barcellano for ₱60,000.00. The
following day, the heirs of Bañas learned about the sale and went to the house of Medina to inquire
about it.6 Medina confirmed that the lot was sold to Barcellano. The heirs conveyed their intention to
redeem the property but Medina replied that there was already a deed of sale executed between the
parties.7 Also, the Bañas heirs failed to tender the ₱60,000.00 redemption amount to Medina. 8

Aggrieved, the heirs went to the Office of the Barangay Council on 5 April 1997. 9 Medina sent only his
tenant to attend the proceeding. On 9 April 1997, the Bañas heirs and Barcellano, with neither Medina
nor his tenant in attendance, went to the Office of the Barangay Council to settle the dispute. According
to one of the Bañas heirs, Barcellano told them that he would be willing to sell the property but for a
higher price of ₱90,000.00.10 Because the parties could not agree on the price and for failure to settle
the dispute, the Lupon issued a Certification to File Action. 11

On 24 October 1997, Dolores Bañas filed an action for Legal Redemption before the Regional Trial
Court. However, on 5 February 1998, the petition was withdrawn on the ground that:

xxx considering the present worse economic situation in the country, petitioner opted that the amount
they are supposed to pay for the redemption be readily available for their immediate and emergency
needs.

On 11 March 1998, Dolores Bañas, as represented by Bermillo, filed another action 12 for Legal
Redemption. It was opposed by Barcellano insisting that he complied with the provisions of Art. 1623 of
the New Civil Code but Bañas failed to exercise her right within the period provided by law.

Trial ensued. On 15 March 2000, the trial court dismissed the complaint of the Bañas heirs for their
failure to comply with the condition precedent of making a formal offer to redeem and for failure to file
an action in court together with the consignation of the redemption price within the reglementary period
of 30 days.13 The dispositive portion reads:

WHEREFORE, premises considered, the complaint is hereby ordered DISMISSED.

On appeal, the Court of Appeals reversed and set aside the ruling of the lower court and granted the
heirs the right to redeem the subject property. The appellate court ruled that the filing of a complaint
before the Katarungang Pambarangay should be considered as a notice to Barcellano and Medina that
the heirs were exercising their right of redemption over the subject property; and as having set in motion
the judicial process of legal redemption.14 Further, the appellate court ruled that a formal offer to
redeem, coupled with a tender of payment of the redemption price, and consignation are proper only if
the redemptioner wishes to avail himself of his right of redemption in the future. The tender of payment
and consignation become inconsequential when the redemptioner files a case to redeem the property
within the 30-day period.15

Hence, this Petition for Review on Certiorari.

In this petition, Barcellano questions the ruling of the appellate court for being contrary to the admitted
facts on record and applicable jurisprudence.

The Court’s Ruling

Barcellano maintains that the written notice required under Art. 1623 to be given to adjoining owner was
no longer necessary because there was already actual notice. Further, he asserts that the appellate
court erred in ruling that the tender of payment of the redemption price and consignation are not
required in this case, effectively affirming that the respondents had validly exercised their right of
redemption. Lastly, he questions as erroneous the application of Presidential Decree No. 1508,
otherwise known as "Establishing a System of Amicably Settling Disputes at the Barangay Level,"
thereby ruling that the filing by the heirs of the complaint before the Barangay was an exercise of right
of redemption.

We need only to discuss the requirement of notice under Art. 1623 of the New Civil Code, which
provides that:

The right of legal pre-emption or redemption shall not be exercised except within thirty days from the
notice in writing by the prospective vendor, or by the vendor, as the case may be. The deed of sale
shall not be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor that
he has given written notice thereof to all possible redemptioners.

Nothing in the records and pleadings submitted by the parties shows that there was a written notice
sent to the respondents. Without a written notice, the period of thirty days within which the right of legal
pre-emption may be exercised, does not start.

The indispensability of a written notice had long been discussed in the early case of Conejero v. Court
of Appeals,16 penned by Justice J.B.L. Reyes:
With regard to the written notice, we agree with petitioners that such notice is indispensable, and that, in
view of the terms in which Article of the Philippine Civil Code is couched, mere knowledge of the sale,
acquired in some other manner by the redemptioner, does not satisfy the statute. The written notice
was obviously exacted by the Code to remove all uncertainty as to the sale, its terms and its validity,
and to quiet any doubts that the alienation is not definitive. The statute not having provided for any
alternative, the method of notification prescribed remains exclusive.

This is the same ruling in Verdad v. Court of Appeals: 17

The written notice of sale is mandatory. This Court has long established the rule that notwithstanding
actual knowledge of a co-owner, the latter is still entitled to a written notice from the selling co-owner in
order to remove all uncertainties about the sale, its terms and conditions, as well as its efficacy and
status.

Lately, in Gosiengfiao Guillen v. the Court of Appeals,18 this Court again emphasized the mandatory
character of a written notice in legal redemption:

From these premises, we ruled that "[P]etitioner-heirs have not lost their right to redeem, for in the
absence of a written notification of the sale by the vendors, the 30-day period has not even begun to
run." These premises and conclusion leave no doubt about the thrust of Mariano: The right of the
petitioner-heirs to exercise their right of legal redemption exists, and the running of the period
for its exercise has not even been triggered because they have not been notified in writing of the
fact of sale. (Emphasis supplied)

The petitioner argues that the only purpose behind Art. 1623 of the New Civil Code is to ensure that the
owner of the adjoining land is actually notified of the intention of the owner to sell his property. To
advance their argument, they cited Destrito v. Court of Appeals as cited in Alonzo v. Intermediate
Appellate Court,19 where this Court pronounced that written notice is no longer necessary in case of
actual notice of the sale of property.

The Alonzo case does not apply to this case. There, we pronounced that the disregard of the
mandatory written rule was an exception due to the peculiar circumstance of the case. Thus:

In the face of the established facts, we cannot accept the private respondents' pretense that they were
unaware of the sales made by their brother and sister in 1963 and 1964. By requiring written proof of
such notice, we would be closing our eyes to the obvious truth in favor of their palpably false claim of
ignorance, thus exalting the letter of the law over its purpose. The purpose is clear enough: to make
sure that the redemptioners are duly notified. We are satisfied that in this case the other brothers and
sisters were actually informed, although not in writing, of the sales made in 1963 and 1964, and that
such notice was sufficient.

Now, when did the 30-day period of redemption begin?

While we do not here declare that this period started from the dates of such sales in 1963 and 1964, we
do say that sometime between those years and 1976, when the first complaint for redemption was filed,
the other co-heirs were actually informed of the sale and that thereafter the 30-day period started
running and ultimately expired. This could have happened any time during the interval of thirteen years,
when none of the co-heirs made a move to redeem the properties sold. By 1977, in other words, when
Tecla Padua filed her complaint, the right of redemption had already been extinguished because the
period for its exercise had already expired.

The following doctrine is also worth noting:

While the general rule is, that to charge a party with laches in the assertion of an alleged right it is
essential that he should have knowledge of the facts upon which he bases his claim, yet if the
circumstances were such as should have induced inquiry, and the means of ascertaining the truth were
readily available upon inquiry, but the party neglects to make it, he will be chargeable with laches, the
same as if he had known the facts.

It was the perfectly natural thing for the co-heirs to wonder why the spouses Alonzo, who were not
among them, should enclose a portion of the inherited lot and build thereon a house of strong materials.
This definitely was not the act of a temporary possessor or a mere mortgagee. This certainly looked like
an act of ownership. Yet, given this unseemly situation, none of the co-heirs saw fit to object or at least
inquire, to ascertain the facts, which were readily available. It took all of thirteen years before one of
them chose to claim the right of redemption, but then it was already too late. 20

xxxx
The co-heirs in this case were undeniably informed of the sales although no notice in writing was given
them. And there is no doubt either that the 30-day period began and ended during the 14 years
between the sales in question and the filing of the complaint for redemption in 1977, without the co-
heirs exercising their right of redemption. These are the justifications for this exception.

The Court clarified that:

We realize that in arriving at our conclusion today, we are deviating from the strict letter of the law,
which the respondent court understandably applied pursuant to existing jurisprudence. The said court
acted properly as it had no competence to reverse the doctrines laid down by this Court in the above-
cited cases. In fact, and this should be clearly stressed, we ourselves are not abandoning the De
Conejero and Buttle doctrines. What we are doing simply is adopting an exception to the general rule, in
view of the peculiar circumstances of this case.21 (Emphasis supplied)

Without the "peculiar circumstances" in the present case, Alonzo cannot find application. The
impossibility in Alonzo of the parties’ not knowing about the sale of a portion of the property they were
actually occupying is not presented in this case. The strict letter of the law must apply. That a departure
from the strict letter should only be for extraordinary reasons is clear from the second sentence of Art.
1623 that "The deed of sale shall not be recorded in the Registry of Property, unless accompanied by
an affidavit of the vendor that he has given written notice thereof to all possible redemptioners."

Justice Edgardo Paras, referring to the origins of the requirement, would explain in his commentaries on
the New Civil Code that despite actual knowledge, the person having the right to redeem is STILL
entitled to the written notice. Both the letter and the spirit of the New Civil Code argue against any
attempt to widen the scope of the "written notice" by including therein any other kind of notice such as
an oral one, or by registration. If the intent of the law has been to include verbal notice or any other
means of information as sufficient to give the effect of this notice, there would have been no necessity
or reason to specify in the article that said notice be in writing, for under the old law, a verbal notice or
mere information was already deemed sufficient.22

Time and time again, it has been repeatedly declared by this Court that where the law speaks in clear
and categorical language, there is no room for interpretation.  There is only room for
lawphi1

application.23 Where the language of a statute is clear and unambiguous, the law is applied according to
its express terms, and interpretation should be resorted to only where a literal interpretation would be
either impossible or absurd or would lead to an injustice. The law is clear in this case, there must first
be a written notice to the family of Bañas.

Absolute Sentencia Expositore Non Indiget, when the language of the law is clear, no explanation of it
is required.24

We find no need to rule on the other issues presented by the petitioner.  The respondent Bañas has a
1âwphi1

perfect right of redemption and was never in danger of losing such right even if there was no
redemption complaint filed with the barangay, no tender of payment or no consignation.

WHEREFORE, the appeal is DENIED. The 26 February 2004 Decision of the Court of Appeals in CA-
G.R. CV No. 67702, granting to petitioner-appellants the right to redeem the subject property for the
amount of Php60,000.00 within thirty (30) days from the finality of this decision is hereby AFFIRMED.
No cost.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-5691 December 27, 1910

S. D. MARTINEZ and his wife, CARMEN ONG DE MARTINEZ, plaintiffs-appellees,

vs.
WILLIAM VAN BUSKIRK, defendant-appellant.

Lionel D. Hargis for appellant.

Sanz and Oppisso for appellee.

MORELAND, J.:

The facts found by the trial court are undisputed by either party in this case. They are —

That on the 11th day of September, 1908, the plaintiff, Carmen Ong de Martinez, was riding in a
carromata on Calle Real, district of Ermita, city of Manila, P.I., along the left-hand side of the
street as she was going, when a delivery wagon belonging to the defendant used for the
purpose of transportation of fodder by the defendant, and to which was attached a pair of
horses, came along the street in the opposite direction to that the in which said plaintiff was
proceeding, and that thereupon the driver of the said plaintiff's carromata, observing that the
delivery wagon of the defendant was coming at great speed, crowded close to the sidewalk on
the left-hand side of the street and stopped, in order to give defendant's delivery wagon an
opportunity to pass by, but that instead of passing by the defendant's wagon and horses ran into
the carromata occupied by said plaintiff with her child and overturned it, severely wounding said
plaintiff by making a serious cut upon her head, and also injuring the carromata itself and the
harness upon the horse which was drawing it.

x x x           x x x          x x x

These facts are not dispute, but the defendant presented evidence to the effect that the
cochero, who was driving his delivery wagon at the time the accident occurred, was a good
servant and was considered a safe and reliable cochero; that the delivery wagon had sent to
deliver some forage at Paco Livery Stable on Calle Herran, and that for the purpose of delivery
 thereof the cochero driving the team as defendant's employee tied the driving lines of the
horses to the front end of the delivery wagon and then went back inside of the wagon for the
purpose of unloading the forage to be delivered; that while unloading the forage and in the act
of carrying some of it out, another vehicle drove by, the driver of which cracked a whip and
made some other noises, which frightened the horses attached to the delivery wagon and they
ran away, and the driver was thrown from the inside of the wagon out through the rear upon the
ground and was unable to stop the horses; that the horses then ran up and on which street they
came into collision with the carromata in which the plaintiff, Carmen Ong de Martinez, was
riding.

The defendant himself was not with the vehicle on the day in question.

Upon these facts the court below found the defendant guilty of negligence and gave judgment against
him for P442.50, with interest thereon at the rate of 6 per cent per annum from the 17th day of October,
1908, and for the costs of the action. The case is before us on an appeal from that judgment.

There is no general law of negligence in the Philippine Islands except that embodied in the Civil Code.
The provisions of that code pertinent to this case are —

Art. 1902. A person who by an act or omission causes damage to another when there is fault or
negligence shall be obliged to repair the damage so done.

Art. 1903. The obligation imposed by preceding article is demandable, not only for personal acts
and omissions, but also for those of the persons for whom they should be responsible.

The father, and on his death or incapacity the mother, is liable for the damages caused by the
minors who live with them.

Guardians are liable for the damages caused by minors or incapacitated persons who are under
their authority and live with them.

Owners of directors of an establishment or enterprise are equally liable for the damages caused
by the employees in the service of the branches in which the latter may be employed or on
account of their duties.

The State is liable in this sense when it acts through a special agent, but not when the damages
should have been caused by the official to whom properly it pertained to do the act performed,
in which case the provisions of the preceding article shall be applicable.

Finally, masters or directors of arts and trades are liable for the damages caused by their pupils
or apprentices while they are under their custody.

The liability referred to in this article shall cease when the persons mentioned therein prove that
they employed all the diligence of a good father of a family to avoid the damage.

Passing the question whether or not an employer who has furnished a gentle and tractable team and a
trusty and capable driver is, under the last paragraph of the above provisions, liable for the negligence
of such driver in handling the team, we are of the opinion that the judgment must be reversed upon the
ground that the evidence does not disclose that the cochero was negligent.

While the law relating to negligence in this jurisdiction may possibly be some what different from that in
Anglo-Saxon countries, a question we do not now discuss, the rules under which the fact of negligence
is determined are, nevertheless, generally the same. That is to say, while the law designating
the person responsible for a negligent act may not be the same here as in many jurisdictions, the law
determining what is a negligent act is the same here, generally speaking, as elsewhere. (Supreme
court of Spain, 4 December, 1903; 16 May, 1893; 27 June, 1894; 9 April, 1896; 14 March, 1901; 2
March, 1904; 7 February, 1905; 16 June, 1905; 23 June, 1905; 13 April, 1903; 7 March, 1902; 12 June,
1900; 2 March, 1907; 18 March, 1898; 3 June, 1901.)

It appears from the undisputed evidence that the horses which caused the damage were gentle and
tractable; that the cochero was experienced and capable; that he had driven one of the horses several
years and the other five or six months; that he had been in the habit, during all that time, of leaving
them in the condition in which they were left on the day of the accident; that they had never run away up
to that time and there had been, therefore, no accident due to such practice; that to leave the horses
and assist in unloading the merchandise in the manner described on the day of the accident was the
custom of all cochero who delivered merchandise of the character of that which was being delivered by
the cochero of the defendant on the day in question, which custom was sanctioned by their employers.
In our judgment, the cochero of the defendant was not negligent in leaving the horses in the manner
described by the evidence in this case, either under Spanish or American jurisprudence.
(Lynch vs. Nurdin, 1 Q. B., 422; Rumsey vs. Nelson, 58 Vt., 590; Drake vs. Mount, 33 N. J. L., 442;
Hoboken Land and Improvement Co. vs. Lally, 48 N. J. L., 604; Wasmer vs. D. L. & W. R. R. Co., 80 N.
Y., 212.) 
lawphi1 .net

In the case of Hayman vs. Hewitt (Peake N. P. Cas., pt. 2, p. 170), Lord Kenyon said:

He was performing his duty while removing the goods into the house, and, if every person who
suffered a cart to remain in the street while he took goods out of it was obliged to employ
another to look after the horses, it would be impossible for the business of the metropolis to go
on.

In the case of Griggs vs. Fleckenstein (14 Minn., 81), the court said:

The degree of care required of the plaintiff, or those in charged of his horse, at the time of the
injury, is that which would be exercised by a person of ordinary care and prudence under like
circumstances. It can not be said that the fact of leaving the horse unhitched is in itself
negligence. Whether it is negligence to leave a horse unhitched must be depend upon the
disposition of the horse; whether he was under the observation and control of some person all
the time, and many other circumstances; and is a question to be determined by the jury from the
facts of each case.

In the case of Belles vs. Kellner (67 N. J. L., 255), it was held that it was error on the part of the trial
court to refuse to charge that "it is not negligence for the driver of a quite, gentle horse to leave him
unhitched and otherwise unattended on the side of a public highways while the driver is upon the
sidewalk loading goods on the wagon." The said court closed its opinion with these words:

There was evidence which could have fully justified the jury in finding that the horse was quite
and gentle, and that the driver was upon the sidewalk loading goods on the wagon, at time of
the alleged injury, and that the horse had been used for years in that way without accident. The
refusal of the trial court to charge as requested left the jury free to find was verdict against the
defendant, although the jury was convinced that these facts were proven. lawphil.net

In the case of Southworth vs. Ry. Co. (105 Mass., 342), it was held:

That evidence that a servant, whom traders employed to deliver goods, upon stopping with his
horse and wagon to deliver a parcel at a house from fifty to a hundred rods from a railroad
crossing, left the horse unfastened for four or five minutes while he was in the house, knowing
that it was not afraid of cars, and having used it for three or four months without ever hitching it
or knowing it to start, is not conclusive, as a matter of law, of a want of due care on his part.

The duty, a violation of which is claimed to be negligence in the respect in question, is to exercise
reasonable care and prudence. Where reasonable care is employed in doing an act not itself illegal or
inherently likely to produce damage to others, there will be no liability, although damage in fact ensues.
(Milwaukee Ry. Co. vs. Arms, 91 U. S., 489; Parrott vs. Wells, 15 Wall., 524; Brown vs. Kendall, 6
Cushing, 292; Jackson Architectural Iron Works vs. Hurlbut, 158 N. Y., 34 Westerfield vs. Levis, 43 La.
An., 63; Niosi vs. Empire Steam Laundry, 117 Cal., 257.)

The act of defendant's driver in leaving the horses in the manner proved was not unreasonable or
imprudent. Acts the performance of which has not proved destructive or injurious and which have,
therefore, been acquiesced in by society for so long a time that they have ripened into custom, can not
be held to be themselves unreasonable or imprudent. Indeed the very reason why they have been
permitted by society is that they beneficial rather than prejudicial.  Accidents sometimes happen and
itc-alf

injuries result from the most ordinary acts of life. But such are not their natural or customary results. To
hold that, because such an act once resulted in accident or injury, the actor is necessarily negligent, is
to go far. The fact that the doctrine of res ipsa loquitur is sometimes successfully invoked in such a
case, does not in any sense militate against the reasoning presented. That maxim at most only creates
a prima facie case, and that only in the absence of proof of the circumstances under which the act
complained of was performed. It is something invoked in favor of the plaintiff before defendant's case
showing the conditions and circumstances under which the injury occurred, the creative reason for the
doctrine of res ipsa loquitur disappears. This is demonstrated by the case of Inland and Seaboard
Costing Co. vs. Tolson (139 U.S., 551), where the court said (p. 554):

. . . The whole effect of the instruction in question, as applied to the case before the jury, was
that if the steamboat, on a calm day and in smooth water, was thrown with such force against a
wharf properly built, as to tear up some of the planks of the flooring, this would be prima
facie evidence of negligence on the part of the defendant's agent in making the landing, unless
upon the whole evidence in the case this prima facie evidence was rebutted. As such damage
 to a wharf is not ordinarily done by a steamboat under control of her officers and carefully
managed by them, evidence that such damage was done in this case was prima facie, and, if
unexplained, sufficient evidence of negligence on their part, and the jury might properly be so
instructed.

There was presented in this case, and by the plaintiffs themselves, not only the fact of the runway and
the accident resulting therefrom, but also the conditions under which the runaway occurred. Those
conditions showing of themselves that the defendant's cochero was not negligent in the management of
the horse, the prima facie case in plaintiffs' favor, if any, was destroyed as soon as made.

It is a matter of common knowledge as well as proof that it is the universal practice of merchants to
deliver merchandise of the kind of that being delivered at the time of the injury, in the manner in which
that was then being delivered; and that it is the universal practice to leave the horses in the manner in
which they were left at the time of the accident. This is the custom in all cities. It has not been
productive of accidents or injuries. The public, finding itself unprejudiced by such practice, has
acquiesced for years without objection. Ought the public now, through the courts, without prior objection
or notice, to be permitted to reverse the practice of decades and thereby make culpable and guilty one
who had every reason and assurance to believe that he was acting under the sanction of the strongest
of all civil forces, the custom of a people? We think not.

The judgement is reversed, without special finding as to costs. So ordered.

Arellano, C. J., Mapa, Johnson, Carson and Trent, JJ., concur.

Separate Opinions

TORRES, J., dissenting: I am of the opinion that the judgment should be affirmed.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 162155               August 28, 2007

COMMISSIONER OF INTERNAL REVENUE and ARTURO V. PARCERO in his official capacity as

Revenue District Officer of Revenue District No. 049 (Makati), Petitioners,
vs.
PRIMETOWN PROPERTY GROUP, INC., Respondent.

DECISION

CORONA, J.:

This petition for review on certiorari 1 seeks to set aside the August 1, 2003 decision 2 of the Court of
Appeals (CA) in CA-G.R. SP No. 64782 and its February 9, 2004 resolution denying reconsideration. 3

On March 11, 1999, Gilbert Yap, vice chair of respondent Primetown Property Group, Inc., applied for
the refund or credit of income tax respondent paid in 1997. In Yap's letter to petitioner revenue district
officer Arturo V. Parcero of Revenue District No. 049 (Makati) of the Bureau of Internal Revenue
(BIR),4 he explained that the increase in the cost of labor and materials and difficulty in obtaining
financing for projects and collecting receivables caused the real estate industry to slowdown. 5 As a
consequence, while business was good during the first quarter of 1997, respondent suffered losses
amounting to ₱71,879,228 that year.6

According to Yap, because respondent suffered losses, it was not liable for income
taxes.7 Nevertheless, respondent paid its quarterly corporate income tax and remitted creditable
withholding tax from real estate sales to the BIR in the total amount of ₱26,318,398.32. 8 Therefore,
respondent was entitled to tax refund or tax credit. 9

On May 13, 1999, revenue officer Elizabeth Y. Santos required respondent to submit additional
documents to support its claim.10 Respondent complied but its claim was not acted upon. Thus, on April
14, 2000, it filed a petition for review11 in the Court of Tax Appeals (CTA).

On December 15, 2000, the CTA dismissed the petition as it was filed beyond the two-year prescriptive
period for filing a judicial claim for tax refund or tax credit. 12 It invoked Section 229 of the National
Internal Revenue Code (NIRC):
Sec. 229. Recovery of Taxes Erroneously or Illegally Collected. -- No suit or proceeding shall be
maintained in any court for the recovery of any national internal revenue tax hereafter alleged to have
been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected
without authority, or of any sum alleged to have been excessively or in any manner wrongfully collected,
until a claim for refund or credit has been duly filed with the Commissioner; but such suit or proceeding
may be maintained, whether or not such tax, penalty, or sum has been paid under protest or duress.

In any case, no such suit or proceeding shall be filed after the expiration of two (2) years from
the date of payment of the tax or penalty regardless of any supervening cause that may arise
after payment: Provided, however, That the Commissioner may, even without a claim therefor, refund
or credit any tax, where on the face of the return upon which payment was made, such payment
appears clearly to have been erroneously paid. (emphasis supplied)

The CTA found that respondent filed its final adjusted return on April 14, 1998. Thus, its right to claim a
refund or credit commenced on that date.13

The tax court applied Article 13 of the Civil Code which states:

Art. 13. When the law speaks of years, months, days or nights, it shall be understood that years are of
three hundred sixty-five days each; months, of thirty days; days, of twenty-four hours, and nights
from sunset to sunrise.

If the months are designated by their name, they shall be computed by the number of days which they
respectively have.

In computing a period, the first day shall be excluded, and the last included. (emphasis supplied)

Thus, according to the CTA, the two-year prescriptive period under Section 229 of the NIRC for the
filing of judicial claims was equivalent to 730 days. Because the year 2000 was a leap year,
respondent's petition, which was filed 731 days14 after respondent filed its final adjusted return, was filed
beyond the reglementary period. 15

Respondent moved for reconsideration but it was denied. 16 Hence, it filed an appeal in the CA.17

On August 1, 2003, the CA reversed and set aside the decision of the CTA. 18 It ruled that Article 13 of
the Civil Code did not distinguish between a regular year and a leap year. According to the CA:

The rule that a year has 365 days applies, notwithstanding the fact that a particular year is a leap year. 19

In other words, even if the year 2000 was a leap year, the periods covered by April 15, 1998 to April 14,
1999 and April 15, 1999 to April 14, 2000 should still be counted as 365 days each or a total of 730
days. A statute which is clear and explicit shall be neither interpreted nor construed. 20

Petitioners moved for reconsideration but it was denied. 21 Thus, this appeal.

Petitioners contend that tax refunds, being in the nature of an exemption, should be strictly construed
against claimants.22 Section 229 of the NIRC should be strictly applied against respondent inasmuch as
it has been consistently held that the prescriptive period (for the filing of tax refunds and tax credits)
begins to run on the day claimants file their final adjusted returns. 23 Hence, the claim should have been
filed on or before April 13, 2000 or within 730 days, reckoned from the time respondent filed its final
adjusted return.

The conclusion of the CA that respondent filed its petition for review in the CTA within the two-year
prescriptive period provided in Section 229 of the NIRC is correct. Its basis, however, is not.

The rule is that the two-year prescriptive period is reckoned from the filing of the final adjusted
return.24 But how should the two-year prescriptive period be computed?

As already quoted, Article 13 of the Civil Code provides that when the law speaks of a year, it is
understood to be equivalent to 365 days. In National Marketing Corporation v. Tecson,25 we ruled that a
year is equivalent to 365 days regardless of whether it is a regular year or a leap year. 26

However, in 1987, EO27 292 or the Administrative Code of 1987 was enacted. Section 31, Chapter VIII,
Book I thereof provides:

Sec. 31. Legal Periods. — "Year" shall be understood to be twelve calendar months; "month" of

thirty days, unless it refers to a specific calendar month in which case it shall be computed according to
the number of days the specific month contains; "day", to a day of twenty-four hours and; "night" from
sunrise to sunset. (emphasis supplied)

A calendar month is "a month designated in the calendar without regard to the number of days it may
contain."28 It is the "period of time running from the beginning of a certain numbered day up to, but not
including, the corresponding numbered day of the next month, and if there is not a sufficient number of
days in the next month, then up to and including the last day of that month." 29 To illustrate, one calendar
month from December 31, 2007 will be from January 1, 2008 to January 31, 2008; one calendar month
from January 31, 2008 will be from February 1, 2008 until February 29, 2008. 30

A law may be repealed expressly (by a categorical declaration that the law is revoked and abrogated by
another) or impliedly (when the provisions of a more recent law cannot be reasonably reconciled with
the previous one).31 Section 27, Book VII (Final Provisions) of the Administrative Code of 1987 states:

Sec. 27. Repealing clause. — All laws, decrees, orders, rules and regulation, or portions thereof,
inconsistent with this Code are hereby repealed or modified accordingly.

A repealing clause like Sec. 27 above is not an express repealing clause because it fails to identify or
designate the laws to be abolished. 32 Thus, the provision above only impliedly repealed all laws
inconsistent with the Administrative Code of 1987. 1avvphi1

Implied repeals, however, are not favored. An implied repeal must have been clearly and unmistakably
intended by the legislature. The test is whether the subsequent law encompasses entirely the subject
matter of the former law and they cannot be logically or reasonably reconciled. 33

Both Article 13 of the Civil Code and Section 31, Chapter VIII, Book I of the Administrative Code of
1987 deal with the same subject matter — the computation of legal periods. Under the Civil Code, a
year is equivalent to 365 days whether it be a regular year or a leap year. Under the Administrative
Code of 1987, however, a year is composed of 12 calendar months. Needless to state, under the
Administrative Code of 1987, the number of days is irrelevant.

There obviously exists a manifest incompatibility in the manner of computing legal periods under the
Civil Code and the Administrative Code of 1987. For this reason, we hold that Section 31, Chapter VIII,
Book I of the Administrative Code of 1987, being the more recent law, governs the computation of legal
periods. Lex posteriori derogat priori.

Applying Section 31, Chapter VIII, Book I of the Administrative Code of 1987 to this case, the two-year
prescriptive period (reckoned from the time respondent filed its final adjusted return 34 on April 14, 1998)
consisted of 24 calendar months, computed as follows:

Year 1 1st calendar April 15, 1998 to May 14, 1998

month
  2nd calendar May 15, 1998 to June 14, 1998
month
  3rd calendar June 15, 1998 to July 14, 1998
month
  4th calendar July 15, 1998 to August 14, 1998
month
  5th August 15, 1998 to September 14,
calendar 1998
month
  6th September 15, to October 14, 1998
calendar 1998
month
  7th calendar October 15, 1998 to November 14, 1998
month
  8th calendar November 15, 1998 to December 14, 1998
month
  9th calendar December 15, 1998 to January 14, 1999
month
  10th calendar January 15, 1999 to February 14, 1999
month
  11th calendar February 15, 1999 to March 14, 1999
 month
  12th calendar March 15, 1999 to April 14, 1999
month
Year 2 13th calendar April 15, 1999 to May 14, 1999
month
  14th calendar May 15, 1999 to June 14, 1999
month
  15th calendar June 15, 1999 to July 14, 1999
month
  16th calendar July 15, 1999 to August 14, 1999
month
  17th August 15, 1999 to September 14,
calendar 1999
month
  18th September 15, to October 14, 1999
calendar 1999
month
  19th calendar October 15, 1999 to November 14, 1999
month
  20th calendar November 15, 1999 to December 14, 1999
month
  21st calendar December 15, 1999 to January 14, 2000
month
  22nd calendar January 15, 2000 to February 14, 2000
month
  23rd calendar February 15, 2000 to March 14, 2000
month
  24th calendar March 15, 2000 to April 14, 2000
month

We therefore hold that respondent's petition (filed on April 14, 2000) was filed on the last day of the
24th calendar month from the day respondent filed its final adjusted return. Hence, it was filed within the
reglementary period.

Accordingly, the petition is hereby DENIED. The case is REMANDED to the Court of Tax Appeals
which is ordered to expeditiously proceed to hear C.T.A. Case No. 6113 entitled Primetown Property
Group, Inc. v. Commissioner of Internal Revenue and Arturo V. Parcero.

No costs.

SO ORDERED.

RENATO C. CORONA
Associate Justice
 THIRD DIVISION

[G.R. No. 183449 : March 12, 2012]

ALFREDO JACA MONTAJES, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,

RESPONDENT.

DECISION

PERALTA, J.:

Assailed in this petition for review on certiorari are the Resolutions dated  September 21,
2007[1] and May 19, 2008 [2] of  the Court of Appeals  (CA)  issued in CA-G.R. CR No. 
00410 which dismissed the petition for review filed by petitioner Alfredo Jaca Montajes for
being filed out of time, and denied reconsideration thereof, respectively.
cralaw

In an Information[3] dated June 5, 2003, petitioner was charged with the crime of Direct
Assault before the Municipal Trial Court  (MTC) of  Buenavista,  Agusan del Norte, the
accusatory portion of which reads:

That on or about the 8th day of December, 2002, at 1:00 early morning, more or less, in
Purok 10, Barangay Abilan, Buenavista, Agusan del Norte, and within the jurisdiction of
this Honorable Court, the above-named accused, did then and there willfully, unlawfully
and feloniously attack, assault, and hack one JOSE B. RELLON, an elected Punong
Barangay, while in the performance of his duties, and accused fully know that Jose B.
Rellon is a Barangay Official, to the damage and prejudice of  said Jose B. Rellon.

CONTRARY TO LAW:  Article 148 of the revised Penal Code.[4]

When arraigned, petitioner pleaded not guilty to the charge.[5]

Thereafter, trial ensued.

The evidence of the prosecution and the defense is summarized by the MTC as follows:

To substantiate the alleged commission of the crime of direct assault by the accused,
complaining witness Jose B. Rellon declared inter alia, that he has been the Barangay
Captain of Barangay Abilan, Buenavista, Agusan del Norte since the year 2002. On
December 8, 2002, at about 1:00 o'clock in the early morning, he was at the benefit
dance sponsored by the Sangguniang Kabataan at Purok 4, Barangay Abilan, Buenavista,
Agusan del Norte. He met accused Alfredo Montajes who uttered to him the words
“YOU'RE A USELESS CAPTAIN.” Other words of similar import were likewise uttered by the
accused against him which he could no longer recall. After uttering the said words, the
accused then drew his bolo locally known as “lagaraw” and approached him. He then
moved backward, but the accused came near to him and struck him once with the
“lagaraw.” Luckily, complainant was not hit as he managed to move backward.
Complainant's daughter named Vilma Dector and his wife, approached him and brought
him home. Many people, including two (2) CVO (Rodelio Laureto and Victorio Trinquite),
witnessed the incident.

During the mediation in the barangay hall, an investigation was conducted. The accused,
according to the complainant, asked for forgiveness from him which he declined, as he
was of the impression that the law must be applied and the accused should instead ask for
forgiveness in court.

As proof that the accused asked for forgiveness, complainant presented a document (Exh.
“B”) to that effect.

Complainant had the incident blottered at the police station as evidenced by an extract
thereof.

On cross-examination, complainant testified that he went to the benefit dance to stop it

since it was already 1:00 o'clock in the early morning and the benefit dance was still going
on when it was supposed to end at 12:00 o'clock midnight as the permit he gave was only
up to 12:00 o'clock midnight. As a result of the stoppage of the benefit  dance,  many
persons got angry, and he heard that the house of the accused was stoned which made
the accused angry.  In fact, he saw  the accused murmuring as his house was stoned by
unknown persons. When the accused came near to him, the former did not ask for
assistance from him.

Prosecution witness Rodelio Laureto corroborated the declaration of the complainant that
it was the accused who hacked the complainant with the use of a “lagaraw,” but failed to
hit him.

Accused Alfredo Montajes testified that in the evening of December 7, 2002, he was at
home listening to the disco as there was a benefit dance near their house. The benefit
dance started at 7 o'clock in the evening and ended at 1 o'clock in the early morning of
December 8, 2002 when it was stopped by Barangay Captain Jose Rellon. It was then that
trouble started because many of those who have paid but were not anymore allowed to
dance complained to the Barangay Captain and requested that they be given one more
music so that they could avail for what they have paid for on that benefit dance, as they
were not refunded with their payments.  When this protest went on, the CVO's reacted by
clubbing them using their jackets. Then a stoning incident followed. One of those hit by
stones was his house. This made him wild prompting him to get his “lagaraw” to look for
the people responsible for stoning his house.  While looking for these persons along the
road, he saw Barangay Captain Jose Rellon who was then two (2) meters away from him,
and he responded by telling him that he was looking for those persons responsible for the
stoning of his house. The complainant wanted to get the “lagaraw” from him but he
refused.

The accused explained, when confronted with a document (Exh. “B”) wherein it was stated
that he asked for apology from the Barangay Captain during the barangay level
conciliation, that it was for the sole purpose of not elevating this case and that they would
settle amicably.

The accused also vehemently denied the accusation that he attacked the barangay
captain.

Defense witness Luis A. Cajeles, Jr., a Barangay Kagawad of Barangay Abilan, Buenavista,
Agusan del Norte, testified that at about 1:00 o'clock in the early dawn of December 8,
2002, he heard of stoning and shouting, in fact the window grill of his house was hit and
he heard the people in panic. As a barangay kagawad assigned to the Peace and Order
Committee, he went out immediately from his house and went to the road across the
basketball court where the stoning was. He then saw accused Alfredo Montajes holding a
bolo. The accused was shouting that he was looking for the persons who stoned his house.
He also witnessed that the barangay captain asked the accused why he was bringing a
bolo and the accused replied that he was looking for the persons who stoned his house. He
did not know what else happened because he tried to drive the teenagers to their homes,
because it was already very late in the evening.
On cross-examination, he declared that the accused asked for forgiveness during the
confrontation at the Barangay because of the disturbance he made to the barangay
captain and to the community because some people were in panic as he was bringing a
bolo, and not for attacking  the Barangay Captain.

Anatolio Lozada Bangahon, another defense witness, testified that he saw the accused
coming out from his house carrying a bolo, and when he asked him why he was bringing a
bolo, the accused replied that he was going to look for the persons who stoned his house. 
The accused was roaming around to look for the persons who stoned his house, but he
was not looking after the Barangay Captain. [6]

On December 29, 2005, the MTC issued its Judgment [7] finding petitioner guilty of the
crime of direct assault.  The dispositive portion of the judgment reads:

WHEREFORE, the Court finds accused ALFREDO MONTAJES y JACA guilty beyond
reasonable doubt of the crime of Direct Assault as defined and penalized under Art. 148 of
the Revised Penal Code and hereby sentences him to suffer an indefinite prison term of
FOUR (4) MONTHS AND ONE DAY of  arresto mayor in its maximum period, as minimum,
to FOUR (4) YEARS, NINE MONTHS AND TEN DAYS of prision correccional in its medium
period, as maximum, there being no mitigating or aggravating circumstance attending the
commission of the offense charged. The accused is likewise ordered to pay a fine of ONE
THOUSAND PESOS (P1,000.00) Philippine Currency, without subsidiary imprisonment in
case of insolvency.[8]

On appeal, the Regional Trial Court (RTC), Branch 3, Butuan City,  rendered its 
Decision[9] dated  January 23, 2007 affirming in toto the judgment of the  MTC.

Petitioner filed a motion for reconsideration which the RTC denied in an Order [10] dated
May 4, 2007.

Petitioner filed with the CA a petition (should be motion)  for extension of time to file
petition for review  under Rule 42 of the Rules of Court praying for an extended period of
15 days from May 21, 2007, or until June 5, 2007, within which to file his petition.
Petitioner subsequently filed his petition for review on June 5, 2007.

On September 21, 2007, the CA issued its assailed Resolution dismissing the petition
outright for being filed out of time. In so ruling, the CA said:

As borne by the records, the petitioner received the copy of the resolution denying his
motion for reconsideration on May 4, 2007, Thus, the 15-day reglementary period within
which to file a petition  for review expired on May 21, 2007 (Monday) considering that the
last day fell on a Saturday, May 19, 2007. It appears that petitioner reckoned the
extension from May 21, 2007 (Monday) and not from May 19, 2007 (Saturday).  Petitioner
should have reckoned the 15-day extension from May 19, 2007 and not from May 21,
2007.  It is well settled that when the day of the period falls on a Saturday, Sunday, or a
legal holiday, and a party is granted an extension of time, the extension should be
counted from the last day which is a Saturday, Sunday or legal holiday. [11]

Petitioner's motion for reconsideration was denied in a Resolution dated May 19, 2008.

Petitioner is now before us on the issue of whether the CA erred in denying due course to
his petition for review for being filed out of time.

Petitioner argues that he filed the motion for extension of time to file a petition for review
with the CA pursuant to Section 1, Rule 22 of the Rules of Court; that based on such
provision, if the last day to file a petition falls on a Saturday, the time shall not run until
the next working day. Here, the last day of the reglementary period within which to file
the said petition for review with the CA fell on a Saturday, thus, the last day to file the
petition was moved to the next working day which was May 21, 2007, Monday. Hence, he
was not wrong in asking the CA to give him 15 days from May 21, 2007 to file the petition
and not from May 19, 2007, Saturday.  Nonetheless, petitioner asks for liberality in the
interest of justice taking into consideration the merit of his petition claiming that his
conviction was not supported by the evidence on record. Moreover, he claims that his
petition for review was filed with the CA on June 5, 2007, which was long before the CA
dismissed the same on September 21, 2007 for being filed out of time. He prays that the
CA resolutions be reversed and set aside and the CA be directed to give due course to his
petition and to resolve the case on the merits.

We grant the petition.

Section 1, Rule 22 of the Rules of Court relied upon by petitioner provides:

Section 1. How to compute time. – In computing any period of time prescribed or allowed
by these Rules, or by order of the court, or by any applicable statute, the day of the act or
event from which the designated period of time begins to run is to be excluded and the
date of performance included.  If the last day of the period, as thus computed, falls on a
Saturday, a Sunday, or a legal holiday in the place where the court sits, the time shall not
run until the next working day.

We then clarified the above-quoted provision when we issued A.M. No. 00-2-14-SC dated
February 29, 2000 (Re: Computation of Time When the Last Day Falls on a Saturday,
Sunday or a Legal Holiday and a Motion for Extension on Next Working Day is Granted)
which reads:

xxxx

Whereas, the aforecited provision [Section 1, Rule 22 of the Rules of Court] applies in the
matter of filing of pleadings in courts when the due date falls on a Saturday, Sunday or
legal holiday, in which case, the filing of the said pleading on the next working day is
deemed on time;

Whereas, the question has been raised if the period is extended ipso jure to the next
working day immediately following where the last day of the period is a Saturday, Sunday
or a legal holiday, so that when a motion for extension of time is filed, the period of
extension is to be reckoned from the next working day and not from the original expiration
of the period.

NOW THEREFORE, the Court Resolves, for the guidance of the Bench and the Bar, to
declare that Section 1, Rule 22 speaks only of "the last day of the period" so that when a
party seeks an extension and the same is granted, the due date ceases to be the last day
and hence, the provision no longer applies. Any extension of time to file the required
pleading should therefore be counted from the expiration of the period regardless of the
fact that said due date is a Saturday, Sunday or legal holiday.

In De la Cruz v. Maersk Filipinas Crewing, Inc., [12] we said:

Section 1, Rule 22, as clarified by the circular, is clear. Should a party desire to file any
pleading, even a motion for extension of time to file a pleading, and the last day falls on a
Saturday, Sunday or a legal holiday, he may do so on the next working day. This is what
petitioner did in the case at bar.

However, according to the same circular, the petition for review on certiorari was indeed
filed out of time. The provision states that in case a motion for extension is granted, the
due date for the extended period shall be counted from the original due date, not from the
next working day on which the motion for extension was filed. In Luz v. National Amnesty
Commission, we had occasion to expound on the matter. In that case, we held that the
extension granted by the court should be tacked to the original period and commences
immediately after the expiration of such period.

In the case at bar, although petitioner's filing of the motion for extension was within the
period provided by law, the filing of the petition itself was not on time. Petitioner was
granted an additional period of 30 days within which to file the petition. Reckoned from
the original period, he should have filed it on May 8, 2006. Instead, he did so only on May
11, 2006, that is, 3 days late.[13]

Based on Section 1, Rule 22 of the Rules of Court, where the last day of the period for
doing any act required by law falls on a Saturday, a Sunday, or a legal holiday in the place
where the court sits, the time shall not run until the next working day. In this case, the
original period for filing the petition for review with the CA was on May 19, 2007, a
Saturday.  Petitioner's filing of his motion for extension of time to file a petition for review
on May 21, 2007, the next working day which followed the last day for filing which fell on
a Saturday, was therefore on time.  However, petitioner prayed in his motion for extension
that he be granted 15 days from May 21, 2007 or up to June 5, 2007 within which to file
his petition. He then filed his petition for review on June 5, 2007.  The CA did not act on
the motion for extension, but instead issued a Resolution dated September 21, 2007
dismissing the petition for review for being filed out of time.

We find that the CA correctly ruled that the petition for review was filed out of time based
on our clarification in A.M. No. 00-2-14-SC that the 15-day extension period prayed for
should be tacked to the original period and commences immediately after the expiration of
such period.[14]  Thus, counting 15 days from the expiration of the period which was on
May 19, 2007, the petition filed on June 5, 2007 was already two days late. However, we
find the circumstances obtaining in this case to merit the liberal application of the rule in
the interest of justice and fair play.

Notably, the petition for review was already filed on June 5, 2007, which was long before
the CA issued its Resolution dated September 21, 2007 dismissing the petition for review
for being filed out of time.  There was no showing that respondent suffered any material
injury or his cause was prejudiced by reason of such delay.  Moreover, the RTC decision
which was sought to be reversed in the petition for review filed in the CA had affirmed the
MTC judgment convicting petitioner of direct assault, hence, the petition involved no less
than petitioner’s liberty.[15]   We do not find anything on record that shows petitioner's
deliberate intent to delay the final disposition of the case as he had filed the petition for
review within the extended period sought, although erroneously computed.  These
circumstances should have been taken into consideration for the CA not to dismiss the
petition outright.

We have ruled that being a few days late in the filing of the petition for review does not
automatically warrant the dismissal thereof.[16]  And even assuming that a petition for
review is filed a few days late, where strong considerations of substantial justice are
manifest in the petition, we may relax the stringent application of technical rules in the
exercise of our equity jurisdiction. [17]

Courts should not be so strict about procedural lapses that do not really impair the proper
administration of justice.[18]  After all, the higher objective of procedural rule is to insure
that the substantive rights of the parties are protected. [19]  Litigations should, as much as
possible, be decided on the merits and not on technicalities. Every party-litigant must be
afforded ample opportunity for the proper and just determination of his case, free from
the unacceptable plea of technicalities. [20]
cralaw

WHEREFORE, the petition is granted. The assailed Resolutions of the Court of Appeals
are SET ASIDE.  The Court of Appeals is ORDERED to reinstate the Petition for Review
filed by petitioner in CA-G.R. CR No. 00410.

SO ORDERED.

Velasco, Jr., (Chairperson), Abad, Mendoza, and Perlas-Bernabe, JJ.,  concur.

 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

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.   Prohibition would then lie since it would be useless and a waste of time to go
1
ahead with the proceedings.   Weconsider the petition filed in this case within the exception, and we
2

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.   As 3

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
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,   only Philippine
5

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.   In this case, the
6

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.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

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.   However, upon review, the respondent city fiscal approved a resolution,
5

dated January 8, 1986, directing the filing of two complaints for adultery against the petitioner.   The 6

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.   A similar petition
8

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.   As a consequence, Judge Leonardo Cruz suspended proceedings in
10

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.   A motion to quash was also filed in the same case on the ground of lack of
11

jurisdiction,   which motion was denied by the respondent judge in an order dated September 8, 1987.
12

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.   Later, private
13

respondent entered a plea of not guilty.  14

On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a prayer
for a temporary restraining order, seeking the annulment of the order of the lower court denying her
motion to quash. The petition is anchored on the main ground that the court is without jurisdiction "to try
and decide the charge of adultery, which is a private offense that cannot be prosecuted de officio (sic),
since the purported complainant, a foreigner, does not qualify as an offended spouse having obtained a
final divorce decree under his national law prior to his filing the criminal complaint."  15

On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents from
implementing the aforesaid order of September 8, 1987 and from further proceeding with Criminal Case
No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A. Ordoñez acted on the
aforesaid petitions for review and, upholding petitioner's ratiocinations, issued a resolution directing the
respondent city fiscal to move for the dismissal of the complaints against the petitioner.  16

We find this petition meritorious. The writs prayed for shall accordingly issue.

Under Article 344 of the Revised Penal Code,   the crime of adultery, as well as four other crimes
17

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.   While in point of strict law the jurisdiction of
18

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   and without which the court cannot exercise its jurisdiction to try the case.
19

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.   Hence, as cogently argued by
20

petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital relationship is still
subsisting at the time of the institution of the criminal action for, adultery. This is a logical consequence
since the raison d'etre of said provision of law would be absent where the supposed offended party had
ceased to be the spouse of the alleged offender at the time of the filing of the criminal case.  21

In these cases, therefore, it is indispensable that the status and capacity of the complainant to
commence the action be definitely established and, as already demonstrated, such status or capacity
must indubitably exist as of the time he initiates the action. It would be absurd if his capacity to bring the
action would be determined by his status before or subsequent to the commencement thereof, where
such capacity or status existed prior to but ceased before, or was acquired subsequent to but did not
exist at the time of, the institution of the case. We would thereby have the anomalous spectacle of a
party bringing suit at the very time when he is without the legal capacity to do so.

To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as to
when precisely the status of a complainant as an offended spouse must exist where a criminal
prosecution can be commenced only by one who in law can be categorized as possessed of such
status. Stated differently and with reference to the present case, the inquiry ;would be whether it is
necessary in the commencement of a criminal action for adultery that the marital bonds between the
complainant and the accused be unsevered and existing at the time of the institution of the action by the
former against the latter.

American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with
ours, yields the rule that after a divorce has been decreed, the innocent spouse no longer has the right
to institute proceedings against the offenders where the statute provides that the innocent spouse shall
have the exclusive right to institute a prosecution for adultery. Where, however, proceedings have been
properly commenced, a divorce subsequently granted can have no legal effect on the prosecution of the
criminal proceedings to a conclusion.  22

In the cited Loftus case, the Supreme Court of Iowa held that —

'No prosecution for adultery can be commenced except on the complaint of the husband
or wife.' Section 4932, Code. Though Loftus was husband of defendant when the
offense is said to have been committed, he had ceased to be such when the
prosecution was begun; and appellant insists that his status was not such as to entitle
him to make the complaint. We have repeatedly said that the offense is against the
unoffending spouse, as well as the state, in explaining the reason for this provision in
the statute; and we are of the opinion that the unoffending spouse must be such when
the prosecution is commenced. (Emphasis supplied.)

We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction,
considering our statutory law and jural policy on the matter. We are convinced that in cases of such
nature, the status of the complainant vis-a-vis the accused must be determined as of the time the
complaint was filed. Thus, the person who initiates the adultery case must be an offended spouse, and
by this is meant that he is still married to the accused spouse, at the time of the filing of the complaint.
In the present case, the fact that private respondent obtained a valid divorce in his country, the Federal
Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in the
Philippines insofar as private respondent is concerned   in view of the nationality principle in our civil
23

law on the matter of status of persons.

Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al.,   after a divorce was granted by a United
24

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,   since there would thenceforth be no spousal relationship
26

to speak of. The severance of the marital bond had the effect of dissociating the former spouses from
each other, hence the actuations of one would not affect or cast obloquy on the other.

The aforecited case of United States vs. Mata cannot be successfully relied upon by private
respondent. In applying Article 433 of the old Penal Code, substantially the same as Article 333 of the
Revised Penal Code, which punished adultery "although the marriage be afterwards declared void", the
Court merely stated that "the lawmakers intended to declare adulterous the infidelity of a married
woman to her marital vows, even though it should be made to appear that she is entitled to have her
marriage contract declared null and void, until and unless she actually secures a formal judicial
declaration to that effect". Definitely, it cannot be logically inferred therefrom that the complaint can still
be filed after the declaration of nullity because such declaration that the marriage is void ab initio is
equivalent to stating that it never existed. There being no marriage from the beginning, any complaint
for adultery filed after said declaration of nullity would no longer have a leg to stand on. Moreover, what
was consequently contemplated and within the purview of the decision in said case is the situation
where the criminal action for adultery was filed before the termination of the marriage by a judicial
declaration of its nullity ab initio. The same rule and requisite would necessarily apply where the
termination of the marriage was effected, as in this case, by a valid foreign divorce.

Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited,   must suffer the
27

same fate of inapplicability. A cursory reading of said case reveals that the offended spouse therein had
duly and seasonably filed a complaint for adultery, although an issue was raised as to its sufficiency but
which was resolved in favor of the complainant. Said case did not involve a factual situation akin to the
one at bar or any issue determinative of the controversy herein.

WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and another
one entered DISMISSING the complaint in Criminal Case No. 87-52435 for lack of jurisdiction. The
temporary restraining order issued in this case on October 21, 1987 is hereby made permanent.

SO ORDERED.

Melencio-Herrera, Padilla and Sarmiento, JJ., concur.

 
 

Separate Opinions

PARAS, J., concurring:

It is my considered opinion that regardless of whether We consider the German absolute divorce as
valid also in the Philippines, the fact is that the husband in the instant case, by the very act of his
obtaining an absolute divorce in Germany can no longer be considered as the offended party in case
his former wife actually has carnal knowledge with another, because in divorcing her, he already
implicitly authorized the woman to have sexual relations with others. A contrary ruling would be less
than fair for a man, who is free to have sex will be allowed to deprive the woman of the same privilege.

In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute
divorce between the American husband and his American wife as valid and binding in the Philippines
on the theory that their status and capacity are governed by their National law, namely, American law.
There is no decision yet of the Supreme Court regarding the validity of such a divorce if one of the
parties, say an American, is married to a Filipino wife, for then two (2) different nationalities would be
involved.

In the book of Senate President Jovito Salonga entitled Private International Law and precisely because
of the National law doctrine, he considers the absolute divorce as valid insofar as the American
husband is concerned but void insofar as the Filipino wife is involved. This results in what he calls a
"socially grotesque situation," where a Filipino woman is still married to a man who is no longer her
husband. It is the opinion however, of the undersigned that very likely the opposite expresses the
correct view. While under the national law of the husband the absolute divorce will be valid, still one of
the exceptions to the application of the proper foreign law (one of the exceptions to comity) is when the
foreign law will work an injustice or injury to the people or residents of the forum. Consequently since to
recognize the absolute divorce as valid on the part of the husband would be injurious or prejudicial to
the Filipino wife whose marriage would be still valid under her national law, it would seem that under our
law existing before the new Family Code (which took effect on August 3, 1988) the divorce should be
considered void both with respect to the American husband and the Filipino wife.

The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the
husband was an American can with a Filipino wife because in said case the validity of the divorce
insofar as the Filipino wife is concerned was NEVER put in issue.

Separate Opinions

PARAS, J., concurring:

It is my considered opinion that regardless of whether We consider the German absolute divorce as
valid also in the Philippines, the fact is that the husband in the instant case, by the very act of his
obtaining an absolute divorce in Germany can no longer be considered as the offended party in case
his former wife actually has carnal knowledge with another, because in divorcing her, he already
implicitly authorized the woman to have sexual relations with others. A contrary ruling would be less
than fair for a man, who is free to have sex will be allowed to deprive the woman of the same privilege.

In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute
divorce between the American husband and his American wife as valid and binding in the Philippines
on the theory that their status and capacity are governed by their National law, namely, American law.
There is no decision yet of the Supreme Court regarding the validity of such a divorce if one of the
parties, say an American, is married to a Filipino wife, for then two (2) different nationalities would be
involved.

In the book of Senate President Jovito Salonga entitled Private International Law and precisely because
of the National law doctrine, he considers the absolute divorce as valid insofar as the American
husband is concerned but void insofar as the Filipino wife is involved. This results in what he calls a
"socially grotesque situation," where a Filipino woman is still married to a man who is no longer her
husband. It is the opinion however, of the undersigned that very likely the opposite expresses the
correct view. While under the national law of the husband the absolute divorce will be valid, still one of
the exceptions to the application of the proper foreign law (one of the exceptions to comity) is when the
foreign law will work an injustice or injury to the people or residents of the forum. Consequently since to
recognize the absolute divorce as valid on the part of the husband would be injurious or prejudicial to
the Filipino wife whose marriage would be still valid under her national law, it would seem that under our
law existing before the new Family Code (which took effect on August 3, 1988) the divorce should be
considered void both with respect to the American husband and the Filipino wife.

The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the
husband was an American can with a Filipino wife because in said case the validity of the divorce
insofar as the Filipino wife is concerned was NEVER put in issue.

THIRD DIVISION

G.R. No. 138322. October 2, 2001

GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-

RECIO,, Petitioner, v. REDERICK A. RECIO, respondent.

DECISION

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
judgments; hence, like any other facts, both the divorce decree and
the national law of the alien must be alleged and proven according to
our law on evidence.

The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court,

seeking to nullify the January 7, 1999 Decision 1 and the March 24,
1999 Order 2 of the Regional Trial Court of Cabanatuan City, Branch
28, in Civil Case No. 3026AF. The assailed Decision disposed as
follows:

WHEREFORE, this Court declares the marriage between Grace J.

Garcia and Rederick A. Recio solemnized on January 12, 1994 at
Cabanatuan City as dissolved and both parties can now remarry under
existing and applicable laws to any and/or both parties.3 cräläwvirtualibräry

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 cräläwvirtualibräry

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
cräläwvirtualibräry

On March 3, 1998, petitioner filed a Complaint for Declaration of

Nullity of Marriage 10 in the court a quo,  on the ground of bigamy --
respondent allegedly had a prior subsisting marriage at the time he
married her on January 12, 1994. She claimed that she learned of
respondents marriage to Editha Samson only in November, 1997.

In his Answer, respondent averred that, as far back as 1993, he had

revealed to petitioner his prior marriage and its subsequent
dissolution. 11 He contended that his first marriage to an Australian
citizen had been validly dissolved by a divorce decree obtained in
Australia in 1989; 12 thus, he was legally capacitated to marry
petitioner in 1994.

On July 7, 1998 -- or about five years after the couples wedding and
while the suit for the declaration of nullity was pending -- respondent
was able to secure a divorce decree from a family court in Sydney,
Australia because the marriage ha[d] irretrievably broken down. 13 cräläwvirtualibräry

Respondent prayed in his Answer that the Complaint be dismissed on

the ground that it stated no cause of action. 14 The Office of the
Solicitor General agreed with respondent. 15 The court marked and
admitted the documentary evidence of both parties. 16 After they
submitted their respective memoranda, the case was submitted for
resolution. 17 cräläwvirtualibräry

Thereafter, the trial court rendered the assailed Decision and Order.
 Ruling of the Trial Court

The trial court declared the marriage dissolved on the ground that the
divorce issued in Australia was valid and recognized in the Philippines.
It deemed the marriage ended, but not on the basis of any defect in
an essential element of the marriage; that is, respondents alleged
lack of legal capacity to remarry. Rather, it based its Decision on the
divorce decree obtained by respondent. The Australian divorce had
ended the marriage; thus, there was no more marital union to nullify
or annul.

Hence, this Petition. 18

Issues

Petitioner submits the following issues for our consideration:

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.

The failure of the respondent, who is now a naturalized Australian, to

present a certificate of legal capacity to marry constitutes absence of
a substantial requisite voiding the petitioners marriage to the
respondent

The trial court seriously erred in the application of Art. 26 of the

Family Code in this case.

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.

The trial court gravely erred in pronouncing that the divorce decree
obtained by the respondent in Australia ipso facto  capacitated the
parties to remarry, without first securing a recognition of the
judgment granting the divorce decree before our courts.19 cräläwvirtualibräry

The Petition raises five issues, but for purposes of this Decision, we
shall concentrate on two pivotal ones: (1) whether the divorce
between respondent and Editha Samson was proven, and (2) whether
respondent was proven to be legally capacitated to marry petitioner.
Because of our ruling on these two, there is no more necessity to take
up the rest.

The Courts Ruling

The Petition is partly meritorious.

First Issue:

Proving the Divorce Between Respondent and Editha Samson

Petitioner assails the trial courts recognition of the divorce between

respondent and Editha Samson. Citing Adong v. Cheong Seng
Gee, 20 petitioner argues that the divorce decree, like any other
foreign judgment, may be given recognition in this jurisdiction only
upon proof of the existence of (1) the foreign law allowing absolute
divorce and (2) the alleged divorce decree itself. She adds that
respondent miserably failed to establish these elements.

Petitioner adds that, based on the first paragraph of Article 26 of the

Family Code, marriages solemnized abroad are governed by the law of
the place where they were celebrated (the lex loci celebrationis). In
effect, the Code requires the presentation of the foreign law to show
the conformity of the marriage in question to the legal requirements
of the place where the marriage was performed.

At the outset, we lay the following basic legal principles as the take-
off points for our discussion. Philippine law does not provide for
absolute divorce; hence, our courts cannot grant it. 21 A marriage
between two Filipinos cannot be dissolved even by a divorce obtained
abroad, because of Articles 15 22 and 17 23 of the Civil Code. 24 In
mixed marriages involving a Filipino and a foreigner, Article 26 25 of
the Family Code allows the former to contract a subsequent marriage
in case the divorce is validly obtained abroad by the alien spouse
capacitating him or her to remarry. 26 A divorce obtained abroad by a
couple, who are both aliens, may be recognized in the Philippines,
provided it is consistent with their respective national laws. 27
cräläwvirtualibräry

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

(5) If previously married, how, when and where the previous marriage
was dissolved or annulled;

xxx

ART. 13. In case either of the contracting parties has been previously
married, the applicant shall be required to

ART. 13. In case either of the contracting parties has been previously
married, the applicant shall be required to furnish, instead of the birth
or baptismal certificate required in the last preceding article, the
death certificate of the deceased spouse or the judicial decree of the
absolute divorce, or the judicial decree of annulment or declaration of
nullity of his or her previous marriage. x x x.

ART. 52. The judgment of annulment or of absolute nullity of the

marriage, the partition and distribution of the properties of the
spouses, and the delivery of the childrens presumptive legitimes shall
be recorded in the appropriate civil registry and registries of property;
otherwise, the same shall not affect their persons.

Respondent, on the other hand, argues that the Australian divorce

decree is a public document -- a written official act of an Australian
family court. Therefore, it requires no further proof of its authenticity
and due execution.

Respondent is getting ahead of himself. Before a foreign judgment is

given presumptive evidentiary value, the document must first be
presented and admitted in evidence. 30 A divorce obtained abroad is
proven by the divorce decree itself. Indeed the best evidence of a
judgment is the judgment itself. 31 The decree purports to be a written
act or record of an act of an official body or tribunal of a foreign
country. 32cräläwvirtualibräry

Under Sections 24 and 25 of Rule 132, on the other hand, a writing or

document may be proven as a public or official record of a foreign
country by either (1) an official publication or (2) a copy thereof
attested 33 by the officer having legal custody of the document. If the
record is not kept in the Philippines, such copy must be (a)
accompanied by a certificate issued by the proper diplomatic or
consular officer in the Philippine foreign service stationed in the
foreign country in which the record is kept and (b) authenticated by
the seal of his office. 34 cräläwvirtualibräry

The divorce decree between respondent and Editha Samson appears

to be an authentic one issued by an Australian family
court. 35 However, appearance is not sufficient; compliance with the
aforementioned rules on evidence must be demonstrated.
Fortunately for respondents cause, when the divorce decree of May
18, 1989 was submitted in evidence, counsel for petitioner objected,
not to its admissibility, but only to the fact that it had not been
registered in the Local Civil Registry of Cabanatuan City. 36 The trial
court ruled that it was admissible, subject to petitioners
qualification. 37 Hence, it was admitted in evidence and accorded
weight by the judge. Indeed, petitioners failure to object properly
rendered the divorce decree admissible as a written act of the Family
Court of Sydney, Australia. 38 cräläwvirtualibräry

Compliance with the quoted articles (11, 13 and 52) of the Family
Code is not necessary; respondent was no longer bound by Philippine
personal laws after he acquired Australian citizenship in
1992. 39 Naturalization is the legal act of adopting an alien and
clothing him with the political and civil rights belonging to a
citizen. 40 Naturalized citizens, freed from the protective cloak of their
former states, don the attires of their adoptive countries. By becoming
an Australian, respondent severed his allegiance to the Philippines and
the vinculum juris that had tied him to Philippine personal laws.

Burden of Proving Australian Law

Respondent contends that the burden to prove Australian divorce law

falls upon petitioner, because she is the party challenging the validity
of a foreign judgment. He contends that petitioner was satisfied with
the original of the divorce decree and was cognizant of the marital
laws of Australia, because she had lived and worked in that country
for quite a long time. Besides, the Australian divorce law is allegedly
known by Philippine courts; thus, judges may take judicial notice of
foreign laws in the exercise of sound discretion.

We are not persuaded. The burden of proof lies with the party who
alleges the existence of a fact or thing necessary in the prosecution or
defense of an action. 41 In civil cases, plaintiffs have the burden of
proving the material allegations of the complaint when those are
denied by the answer; and defendants have the burden of proving the
material allegations in their answer when they introduce new
matters. 42 Since the divorce was a defense raised by respondent, the
burden of proving the pertinent Australian law validating it falls
squarely upon him.

It is well-settled in our jurisdiction that our courts cannot take judicial

notice of foreign laws. 43 Like any other facts, they must be alleged
and proved. Australian marital laws are not among those matters that
judges are supposed to know by reason of their judicial
function. 44 The power of judicial notice must be exercised with
caution, and every reasonable doubt upon the subject should be
resolved in the negative.

Second Issue:  Respondents Legal Capacity to Remarry

Petitioner contends that, in view of the insufficient proof of the
divorce, respondent was legally incapacitated to marry her in 1994.
Hence, she concludes that their marriage was void ab initio.

Respondent replies that the Australian divorce decree, which was

validly admitted in evidence, adequately established his legal capacity
to marry under Australian law.

Respondents contention is untenable. In its strict legal

sense, divorce means the legal dissolution of a lawful union for a
cause arising after marriage. But divorces are of different types. The
two basic ones are (1) absolute divorce or a vinculo matrimonii  and
(2) limited divorce or a mensa et thoro. The first kind terminates the
marriage, while the second suspends it and leaves the bond in full
force. 45 There is no showing in the case at bar which type of divorce
was procured by respondent.

Respondent presented a decree nisi or an interlocutory decree -- a

conditional or provisional judgment of divorce. It is in effect the same
as a separation from bed and board, although an absolute divorce
may follow after the lapse of the prescribed period during which no
reconciliation is effected. 46 cräläwvirtualibräry

Even after the divorce becomes absolute, the court may under some
foreign statutes and practices, still restrict remarriage. Under some
other jurisdictions, remarriage may be limited by statute; thus, the
guilty party in a divorce which was granted on the ground of adultery
may be prohibited from marrying again. The court may allow a
remarriage only after proof of good behavior. 47 cräläwvirtualibräry

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.48cräläwvirtualibräry

This quotation bolsters our contention that the divorce obtained by

respondent may have been restricted. It did not absolutely establish
his legal capacity to remarry according to his national law. Hence, we
find no basis for the ruling of the trial court, which erroneously
assumed that the Australian divorce ipso facto  restored respondents
capacity to remarry despite the paucity of evidence on this matter.

We also reject the claim of respondent that the divorce decree raises
a disputable presumption or presumptive evidence as to his civil
status based on Section 48, Rule 39 49 of the Rules of Court, for the
simple reason that no proof has been presented on the legal effects of
the divorce decree obtained under Australian laws.

Significance of the Certificate of Legal Capacity

Petitioner argues that the certificate of legal capacity required by

Article 21 of the Family Code was not submitted together with the
application for a marriage license. According to her, its absence is
proof that respondent did not have legal capacity to remarry.

We clarify. To repeat, the legal capacity to contract marriage is

determined by the national law of the party concerned. The certificate
mentioned in Article 21 of the Family Code would have been sufficient
to establish the legal capacity of respondent, had he duly presented it
in court. A duly authenticated and admitted certificate is prima facie
evidence of legal capacity to marry on the part of the alien applicant
for a marriage license. 50
cräläwvirtualibräry

As it is, however, there is absolutely no evidence that proves

respondents legal capacity to marry petitioner. A review of the records
before this Court shows that only the following exhibits were
presented before the lower court: (1) for petitioner: (a) Exhibit A
Complaint; 51 (b) Exhibit B Certificate of Marriage Between Rederick A.
Recio (Filipino-Australian) and Grace J. Garcia (Filipino) on January
12, 1994 in Cabanatuan City, Nueva Ecija; 52 (c) Exhibit C Certificate
of Marriage Between Rederick A. Recio (Filipino) and Editha D.
Samson (Australian) on March 1, 1987 in Malabon, Metro
Manila; 53 (d) Exhibit D Office of the City Registrar of Cabanatuan City
Certification that no information of annulment between Rederick A.
Recio and Editha D. Samson was in its records; 54 and (e) Exhibit E
Certificate of Australian Citizenship of Rederick A. Recio; 55 (2) for
respondent: (a) Exhibit 1 -- Amended Answer; 56 (b) Exhibit 2 Family
Law Act 1975 Decree Nisi of Dissolution of Marriage in the Family
Court of Australia; 57 (c) Exhibit 3 Certificate of Australian Citizenship
of Rederick A. Recio; 58 (d) Exhibit 4 Decree Nisi of Dissolution of
Marriage in the Family Court of Australia Certificate; 59 and Exhibit 5 --
Statutory Declaration of the Legal Separation Between Rederick A.
Recio and Grace J. Garcia Recio since October 22, 1995. 60 cräläwvirtualibräry

Based on the above records, we cannot conclude that respondent,

who was then a naturalized Australian citizen, was legally capacitated
to marry petitioner on January 12, 1994. We agree with petitioners
contention that the court a quo  erred in finding that the divorce
decree ipso facto clothed respondent with the legal capacity to
remarry without requiring him to adduce sufficient evidence to show
the Australian personal law governing his status; or at the very least,
to prove his legal capacity to contract the second marriage.

Neither can we grant petitioners prayer to declare her marriage to

respondent null and void on the ground of bigamy. After all, it may
turn out that under Australian law, he was really capacitated to marry
petitioner as a direct result of the divorce decree. Hence, we believe
that the most judicious course is to remand this case to the trial court
to receive evidence, if any, which show petitioners legal capacity to
marry petitioner. Failing in that, then the court a quo may declare a
nullity of the parties marriage on the ground of bigamy, there being
already in evidence two existing marriage certificates, which were
both obtained in the Philippines, one in Malabon, Metro Manila dated
March 1, 1987 and the other, in Cabanatuan City dated January 12,
1994.
WHEREFORE , in the interest of orderly procedure and substantial
justice, we REMAND the case to the court a quo for the purpose of
receiving evidence which conclusively show respondents legal capacity
to marry petitioner; and failing in that, of declaring the parties
marriage void on the ground of bigamy, as above discussed. No costs.

SO ORDERED.

Melo,  (Chairman), Vitug, and  Sandoval-Gutierrez, JJ., concur .

SECOND DIVISION

G.R. No. 124862. December 22, 1998

FE D. QUITA, Petitioner, v. COURT OF APPEALS and BLANDINA

DANDAN,* Respondents.

DECISION

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
petition as surviving children of Arturo Padlan, opposed the petition
and prayed for the appointment instead of Atty. Leonardo Cabasal,
which was resolved in favor of the latter. Upon motion of the
oppositors themselves, Atty. Cabasal was later replaced by Higino
Castillon. On 30 April 1973 the oppositors (Blandina and the Padlan
children) submitted certified photocopies of the 19 July 1950 private
writing and the final judgment of divorce between petitioner and
Arturo. Later Ruperto T. Padlan, claiming to be the sole surviving
brother of the deceased Arturo, intervened.

On 7 October 1987 petitioner moved for the immediate declaration of

heirs of the decedent and the distribution of his estate. At the
scheduled hearing on 23 October 1987, private respondent as well as
the six (6) Padlan children and Ruperto failed to appear despite due
notice. On the same day, the trial court required the submission of the
records of birth of the Padlan children within ten (10) days from
receipt thereof, after which, with or without the documents, the issue
on the declaration of heirs would be considered submitted for
resolution. The prescribed period lapsed without the required
documents being submitted.

The trial court invoking Tenchavez v. Escao1 which held that "a foreign

divorce between Filipino citizens sought and decreed after the
effectivity of the present Civil Code (Rep. Act 386) was not entitled to
recognition as valid in this jurisdiction,"2 disregarded the divorce
between petitioner and Arturo. Consequently, it expressed the view
that their marriage subsisted until the death of Arturo in 1972. Neither
did it consider valid their extrajudicial settlement of conjugal
properties due to lack of judicial approval.3 On the other hand, it
opined that there was no showing that marriage existed between
private respondent and Arturo, much less was it shown that the
alleged Padlan children had been acknowledged by the deceased as
his children with her. As regards Ruperto, it found that he was a
brother of Arturo. On 27 November 19874 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
cräläwvirtualibräry

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 19886 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 cräläwvirtualibräry

Should this case be remanded to the lower court for further

proceedings? Petitioner insists that there is no need because, first, no
legal or factual issue obtains for resolution either as to the heirship of
the Padlan children or as to their respective shares in the intestate
estate of the decedent; and, second, the issue as to who between
petitioner and private respondent is the proper heir of the decedent is
one of law which can be resolved in the present petition based on
established facts and admissions of the parties.

We cannot sustain petitioner. The provision relied upon by respondent

court is clear: If there is a  controversy  before the court as to who are
the  lawful heirs of the deceased person  or as to the distributive
shares to which each person is entitled under the law, the
controversy  shall be heard and decided as in ordinary cases.

We agree with petitioner that no dispute exists either as to the right of

the six (6) Padlan children to inherit from the decedent because there
are proofs that they have been duly acknowledged by him and
petitioner herself even recognizes them as heirs of Arturo
Padlan;10 nor as to their respective hereditary shares. But controversy
remains as to who is the legitimate surviving spouse of Arturo. The
trial court, after the parties other than petitioner failed to appear
during the scheduled hearing on 23 October 1987 of the motion for
immediate declaration of heirs and distribution of estate, simply
issued an order requiring the submission of the records of birth of the
Padlan children within ten (10) days from receipt thereof, after which,
with or without the documents, the issue on declaration of heirs would
be deemed submitted for resolution.

We note that in her comment to petitioner's motion private

respondent raised, among others, the issue as to whether petitioner
was still entitled to inherit from the decedent considering that she had
secured a divorce in the U.S.A. and in fact had twice remarried. She
also invoked the above quoted procedural rule.11 To this, petitioner
replied that Arturo was a Filipino and as such remained legally married
to her in spite of the divorce they obtained.12 Reading between the
lines, the implication is that petitioner was no longer a Filipino citizen
at the time of her divorce from Arturo. This should have prompted the
trial court to conduct a hearing to establish her citizenship. The
purpose of a hearing is to ascertain the truth of the matters in issue
with the aid of documentary and testimonial evidence as well as the
arguments of the parties either supporting or opposing the evidence.
Instead, the lower court perfunctorily settled her claim in her favor by
merely applying the ruling in Tenchavez v. Escao.

Then in private respondent's motion to set aside and/or reconsider the

lower court's decision she stressed that the citizenship of petitioner
was relevant in the light of the ruling in Van Dorn v. Romillo
Jr.13 that  aliens may obtain divorces abroad, which may be recognized
in the Philippines, provided they are valid according to their national
law. She prayed therefore that the case be set for hearing.14 Petitioner
opposed the motion but failed to squarely address the issue on her
citizenship.15 The trial court did not grant private respondent's prayer
for a hearing but proceeded to resolve her motion with the finding
that both petitioner and Arturo were "Filipino citizens and were
married in the Philippines."16 It maintained that their divorce obtained
in 1954 in San Francisco, California, U.S.A., was not valid in Philippine
jurisdiction. We deduce that the finding on their citizenship pertained
solely to the time of their marriage as the trial court was not supplied
with a basis to determine petitioner's citizenship at the time of their
divorce. The doubt persisted as to whether she was still a Filipino
citizen when their divorce was decreed. The trial court must have
overlooked the materiality of this aspect. Once proved that she was
no longer a Filipino citizen at the time of their divorce, Van
Dorn would become applicable and petitioner could very well lose her
right to inherit from Arturo.

Respondent again raised in her appeal the issue on petitioner's

citizenship;17 it did not merit enlightenment however from
petitioner.18 In the present proceeding, petitioner's citizenship is
brought anew to the fore by private respondent. She even furnishes
the Court with the transcript of stenographic notes taken on 5 May
1995 during the hearing for the reconstitution of the original of a
certain transfer certificate title as well as the issuance of new owner's
duplicate copy thereof before another trial court. When asked whether
she was an American citizen petitioner answered that she was since
1954.19 Significantly, the decree of divorce of petitioner and Arturo
was obtained in the same year. Petitioner however did not bother to
file a reply memorandum to erase the uncertainty about her
citizenship at the time of their divorce, a factual issue requiring
hearings to be conducted by the trial court. Consequently, respondent
appellate court did not err in ordering the case returned to the trial
court for further proceedings.

We emphasize however that the question to be determined by the

trial court should be limited only to the right of petitioner to inherit
from Arturo as his surviving spouse. Private respondent's claim to
heirship was already resolved by the trial court. She and Arturo were
married on 22 April 1947 while the prior marriage of petitioner and
Arturo was subsisting thereby resulting in a bigamous marriage
considered void from the beginning under Arts. 80 and 83 of the Civil
Code. Consequently, she is not a surviving spouse that can inherit
from him as this status presupposes a legitimate relationship.20cräläwvirtualibräry

As regards the motion of private respondent for petitioner and her

counsel to be declared in contempt of court and that the present
petition be dismissed for forum shopping,21 the same lacks merit. For
forum shopping to exist the actions must involve the same
transactions and same essential facts and circumstances. There must
also be identical causes of action, subject matter and issue.22 The
present petition deals with declaration of heirship while the
subsequent petitions filed before the three (3) trial courts concern the
issuance of new owner's duplicate copies of titles of certain properties
belonging to the estate of Arturo. Obviously, there is no reason to
declare the existence of forum shopping.

WHEREFORE, the petition is DENIED. The decision of respondent

Court of Appeals ordering the remand of the case to the court of origin
for further proceedings and declaring null and void its decision holding
petitioner Fe D. Quita and Ruperto T. Padlan as intestate heirs is
AFFIRMED. The order of the appellate court modifying its previous
decision by granting one-half (1/2) of the net hereditary estate to the
Padlan children, namely, Claro, Ricardo, Emmanuel, Zenaida and
Yolanda, with the exception of Alexis, all surnamed Padlan, instead of
Arturo's brother Ruperto Padlan, is likewise AFFIRMED. The Court
however emphasizes that the reception of evidence by the trial
court should be limited to the hereditary rights of petitioner as the
surviving spouse of Arturo Padlan.

The motion to declare petitioner and her counsel in contempt of court

and to dismiss the present petition for forum shopping is DENIED.

SO ORDERED.

Puno, Mendoza, and Martinez, JJ., concur.

 FIRST DIVISION

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-Intervention 3 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 Catindig 5 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 Intervention 10 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. 11 This is based on the premise that in issuing the
assailed decision and resolution, the Court of Appeals acted with grave abuse of discretion, amounting
to excess of lack of jurisdiction and there is no plain, speedy and adequate remedy in the ordinary
course of law. A remedy is considered plain, speedy, and adequate if it will promptly relieve the
petitioner from the injurious effect of the judgment and the acts of the lower court. 12

It is therefore incumbent upon the petitioner to establish that the Court of Appeals acted with grave
abuse of discretion amounting to excess or lack of jurisdiction when it promulgated the assailed
decision and resolution.

We have previously ruled that grave abuse of discretion may arise when a lower court or tribunal
violates or contravenes the Constitution, the law or existing jurisprudence. By grave abuse of discretion
is meant, such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction.
The abuse of discretion must be grave as where the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility and must be so patent and gross as to amount to an
evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in
contemplation of law.13 The word "capricious," usually used in tandem with the term "arbitrary," conveys
the notion of willful and unreasoning action. Thus, when seeking the corrective hand of certiorari, a
clear showing of caprice and arbitrariness in the exercise of discretion is imperative. 14

The Rules of Court laid down the parameters before a person, not a party to a case can intervene, thus:

Who may intervene. — A person who has a legal interest in the matter in litigation, or in the success of
either of the parties, or an interest against both, or is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the court or of an officer thereof may, with
leave of court, be allowed to intervene in the action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and
whether or not the 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.17 Such interest must be actual, direct and material, and not simply contingent and
expectant.18

Petitioner claims that her status as the wife and companion of Tristan for 17 years vests her with the
requisite legal interest required of a would-be intervenor under the Rules of Court.

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 Code21 which took effect on August 30, 1950. In the case of Tenchavez v. Escano22 we held:

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

Thus, 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
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

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,  whereby the Court of Appeals (CA) affirmed with modification the
1

decision rendered on August 27, 2001 by the Regional Trial Court (RTC), Branch 138, in Makati
City.  The CA thereby denied her right in the 25/100 pro indiviso share of the husband in a condominium
2

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. 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,  disposing
4

thusly:

WHEREFORE, judgment is rendered as follows:

(a) The 24/100 pro-indiviso share in the condominium unit located at the SIXTH FLOOR of the
KALAW LEDESMA CONDOMINIUM PROJECT covered by Condominium Certificate of Title
No. 21761 consisting of FIVE HUNDRED SEVENTEEN (517/100) SQUARE METERS is
adjudged to have been acquired by Juan Lucas Luna through his sole industry;

(b) Plaintiff has no right as owner or under any other concept over the condominium unit, hence
the entry in Condominium Certificate of Title No. 21761 of the Registry of Deeds of Makati with
respect to the civil status of Juan Luces Luna should be changed from "JUAN LUCES LUNA
married to Soledad L. Luna" to "JUAN LUCES LUNA married to Eugenia Zaballero Luna";

(c) Plaintiff is declared to be the owner of the books Corpus Juris, Fletcher on Corporation,
American Jurisprudence and Federal Supreme Court Reports found in the condominium unit
and defendants are ordered to deliver them to the plaintiff as soon as appropriate arrangements
have been madefor transport and storage.

No pronouncement as to costs.

SO ORDERED. 5

Decision of the CA

Both parties appealed to the CA. 6

On her part, the petitioner assigned the following errors to the RTC, namely:

I. THE LOWER COURT ERRED IN RULING THAT THE CONDOMINIUM UNIT WAS
ACQUIRED THRU THE SOLE INDUSTRY OF ATTY. JUAN LUCES LUNA;

II. THE LOWER COURT ERRED IN RULING THAT PLAINTIFFAPPELLANT DID NOT
CONTRIBUTE MONEY FOR THE ACQUISITION OF THE CONDOMINIUM UNIT;

III. THE LOWER COURT ERRED IN GIVING CREDENCE TO PORTIONS OF THE

TESTIMONY OF GREGORIO LUNA, WHO HAS NO ACTUAL KNOWLEDGE OF THE
ACQUISITION OF THE UNIT, BUT IGNORED OTHER PORTIONS OF HIS TESTIMONY
FAVORABLE TO THE PLAINTIFF-APPELLANT;

IV. THE LOWER COURT ERRED IN NOT GIVING SIGNIFICANCE TO THE FACT THAT THE
CONJUGAL PARTNERSHIP BETWEEN LUNA AND INTERVENOR-APPELLANT WAS
ALREADY DISSOLVED AND LIQUIDATED PRIOR TO THE UNION OF PLAINTIFF-
APPELLANT AND LUNA;

V. THE LOWER COURT ERRED IN GIVING UNDUE SIGNIFICANCE TO THE ABSENCE OF

THE DISPOSITION OF THE CONDOMINIUM UNIT IN THE HOLOGRAPHIC WILL OF THE
PLAINTIFF-APPELLANT;

VI. THE LOWER COURT ERRED IN GIVING UNDUE SIGNIFICANCE TO THE FACTTHAT
THE NAME OF PLAINTIFF-APPELLANT DID NOT APPEAR IN THE DEED OF ABSOLUTE
SALE EXECUTED BY TANDANG SORA DEVELOPMENT CORPORATION OVER THE
CONDOMINIUM UNIT;

VII. THE LOWER COURT ERRED IN RULING THAT NEITHER ARTICLE 148 OF THE
FAMILYCODE NOR ARTICLE 144 OF THE CIVIL CODE OF THE PHILIPPINES ARE
APPLICABLE;

VIII. THE LOWER COURT ERRED IN NOT RULING THAT THE CAUSE OF ACTION OF THE
INTERVENOR-APPELLANT HAS BEEN BARRED BY PESCRIPTION AND LACHES; and

IX. THE LOWER COURT ERRED IN NOT EXPUNGING/DISMISSING THE INTERVENTION

FOR FAILURE OF INTERVENOR-APPELLANT TO PAY FILING FEE. 7

In contrast, the respondents attributedthe following errors to the trial court, to wit:
 I. THE LOWER COURT ERRED IN HOLDING THAT CERTAIN FOREIGN LAW BOOKS IN
THE LAW OFFICE OF ATTY. LUNA WERE BOUGHT WITH THE USE OF 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

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,  holding and ruling:
9

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 x
10

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,  the CA denied the petitioner’s motion for reconsideration.
12 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.  Pursuant to the
15

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,  even if either or both of
16

the spouses are residing abroad.  Indeed, the only two types of defective marital unions under our laws
17

have beenthe void and the voidable marriages. As such, the remedies against such defective marriages
have been limited to the declaration of nullity ofthe marriage and the annulment of the marriage.

It is true that on January 12, 1976, the Court of First Instance (CFI) of Sto. Domingo in the Dominican
Republic issued the Divorce Decree dissolving the first marriage of Atty. Luna and
Eugenia.  Conformably with the nationality rule, however, the divorce, even if voluntarily obtained
18

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,  and regards it as a special contract of permanent union between a
19

man and a woman for the establishment of a conjugal and family life.  The non-recognition of absolute
20

divorce in the Philippines is a manifestation of the respect for the sanctity of the marital union especially
among Filipino citizens. It affirms that the extinguishment of a valid marriage must be grounded only
upon the death of either spouse, or upon a ground expressly provided bylaw. For as long as this public
policy on marriage between Filipinos exists, no divorce decree dissolving the marriage between them
can ever be given legal or judicial recognition and enforcement in this jurisdiction.

2. The Agreement for Separation and Property Settlement

was void for lack of court approval

The petitioner insists that the Agreement for Separation and Property Settlement (Agreement) that the
late Atty. Luna and Eugenia had entered into and executed in connection with the divorce proceedings
before the CFI of Sto. Domingo in the Dominican Republic to dissolve and liquidate their conjugal
partnership was enforceable against Eugenia. Hence, the CA committed reversible error in decreeing
otherwise.

The insistence of the petitioner was unwarranted.

Considering that Atty. Luna and Eugenia had not entered into any marriage settlement prior to their
marriage on September 10, 1947, the system of relative community or conjugal partnership of gains
governed their property relations. This is because the Spanish Civil Code, the law then in force at the
time of their marriage, did not specify the property regime of the spouses in the event that they had not
entered into any marriage settlement before or at the time of the marriage. Article 119 of the Civil
Codeclearly so provides, to wit:

Article 119. The future spouses may in the marriage settlements agree upon absolute or relative
community of property, or upon complete separation of property, or upon any other regime. In the
absence of marriage settlements, or when the same are void, the system of relative community or
conjugal partnership of gains as established in this Code, shall govern the property relations between
husband and wife.

Article 142 of the Civil Codehas defined a conjugal partnership of gains thusly:
Article 142. By means of the conjugal partnership of gains the husband and wife place in a common
fund the fruits of their separate property and the income from their work or industry, and divide equally,
upon the dissolution of the marriage or of the partnership, the net gains or benefits obtained
indiscriminately by either spouse during the marriage.

The conjugal partnership of gains subsists until terminated for any of various causes of termination
enumerated in Article 175 of the Civil Code, viz:

Article 175. The conjugal partnership of gains terminates:

(1) Upon the death of either spouse;

(2) When there is a decree of legal separation;

(3) When the marriage is annulled;

(4) In case of judicial separation of property under Article 191.

The mere execution of the Agreement by Atty. Luna and Eugenia did not per sedissolve and liquidate
their conjugal partnership of gains. The approval of the Agreement by a competent court was still
required under Article 190 and Article 191 of the Civil Code, as follows:

Article 190. In the absence of an express declaration in the marriage settlements, the separation of
property between spouses during the marriage shall not take place save in virtue of a judicial order.
(1432a)

Article 191. The husband or the wife may ask for the separation of property, and it shall be decreed
when the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction,
or has been declared absent, or when legal separation has been granted.

xxxx

The husband and the wife may agree upon the dissolution of the conjugal partnership during the
marriage, subject to judicial approval. All the creditors of the husband and of the wife, as well as of the
conjugal partnership shall be notified of any petition for judicialapproval or the voluntary dissolution of
the conjugal partnership, so that any such creditors may appear atthe hearing to safeguard his
interests. Upon approval of the petition for dissolution of the conjugal partnership, the court shall take
such measures as may protect the creditors and other third persons.

After dissolution of the conjugal partnership, the provisions of articles 214 and 215 shall apply. The
provisions of this Code concerning the effect of partition stated in articles 498 to 501 shall be applicable.
(1433a)

But was not the approval of the Agreement by the CFI of Sto. Domingo in the Dominican Republic
sufficient in dissolving and liquidating the conjugal partnership of gains between the late Atty. Luna and
Eugenia?

The query is answered in the negative. There is no question that the approval took place only as an
incident ofthe action for divorce instituted by Atty. Luna and Eugenia, for, indeed, the justifications for
their execution of the Agreement were identical to the grounds raised in the action for divorce.  With the
21

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,  on the ground that the marriage between Atty. Luna and Eugenia had not
22

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.  A bigamous marriage is considered
23

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.  To 1âwphi1

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.  The plaintiff is not automatically entitled to the relief
1âwphi1

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;  and that such aggregate contributions of ₱306,572.00 corresponded to
27

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.  The petitioner further asserts that the
28

lawbooks were paid for solely out of her personal funds, proof of which Atty. Luna had even sent her a
"thank you" note;  that she had the financial capacity to make the contributions and purchases; and that
29

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 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.:

"x x x The first check, Exhibit "M" for ₱55,000.00 payable to Atty. Teresita Cruz Sison was issued on
January 27, 1977, which was thirteen (13) months before the Memorandum of Agreement, Exhibit "7"
was signed. Another check issued on April 29, 1978 in the amount of ₱97,588.89, Exhibit "P" was
payable to Banco Filipino. According to the plaintiff, thiswas in payment of the loan of Atty. Luna. The
third check which was for ₱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 the
acquisition of the subject condominium unit. The connection was simply not established. x x x"

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
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,  did not serve the purpose. In
31

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.

WHEREFORE, the Court AFFIRMS the decision promulgated on November 11, 2005; and ORDERS
the petitioner to pay the costs of suit.
SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 178551               October 11, 2010

ATCI OVERSEAS CORPORATION, AMALIA G. IKDAL and MINISTRY OF PUBLIC HEALTH-

KUWAIT Petitioners,
vs.
MA. JOSEFA ECHIN, Respondent.

DECISION

CARPIO MORALES, J.:

Josefina Echin (respondent) was hired by petitioner ATCI Overseas Corporation in behalf of its
principal-co-petitioner, the Ministry of Public Health of Kuwait (the Ministry), for the position of medical
technologist under a two-year contract, denominated as a Memorandum of Agreement (MOA), with a
monthly salary of US$1,200.00.

Under the MOA,1 all newly-hired employees undergo a probationary period of one (1) year and are
covered by Kuwait’s Civil Service Board Employment Contract No. 2.

Respondent was deployed on February 17, 2000 but was terminated from employment on February 11,
2001, she not having allegedly passed the probationary period.

As the Ministry denied respondent’s request for reconsideration, she returned to the Philippines on
March 17, 2001, shouldering her own air fare.
On July 27, 2001, respondent filed with the National Labor Relations Commission (NLRC) a
complaint2 for illegal dismissal against petitioner ATCI as the local recruitment agency, represented by
petitioner, Amalia Ikdal (Ikdal), and the Ministry, as the foreign principal.

By Decision3 of November 29, 2002, the Labor Arbiter, finding that petitioners neither showed that there
was just cause to warrant respondent’s dismissal nor that she failed to qualify as a regular employee,
held that respondent was illegally dismissed and accordingly ordered petitioners to pay her
US$3,600.00, representing her salary for the three months unexpired portion of her contract.

On appeal of petitioners ATCI and Ikdal, the NLRC affirmed the Labor Arbiter’s decision by
Resolution4 of January 26, 2004. Petitioners’ motion for reconsideration having been denied by
Resolution5 of April 22, 2004, they appealed to the Court of Appeals, contending that their principal, the
Ministry, being a foreign government agency, is immune from suit and, as such, the immunity extended
to them; and that respondent was validly dismissed for her failure to meet the performance rating within
the one-year period as required under Kuwait’s Civil Service Laws. Petitioners further contended that
Ikdal should not be liable as an officer of petitioner ATCI.

By Decision6 of March 30, 2007, the appellate court affirmed the NLRC Resolution.

In brushing aside petitioners’ contention that they only acted as agent of the Ministry and that they
cannot be held jointly and solidarily liable with it, the appellate court noted that under the law, a private
employment agency shall assume all responsibilities for the implementation of the contract of
employment of an overseas worker, hence, it can be sued jointly and severally with the foreign principal
for any violation of the recruitment agreement or contract of employment.

As to Ikdal’s liability, the appellate court held that under Sec. 10 of Republic Act No. 8042, the "Migrant
and Overseas Filipinos’ Act of 1995," corporate officers, directors and partners of a recruitment agency
may themselves be jointly and solidarily liable with the recruitment agency for money claims and
damages awarded to overseas workers.

Petitioners’ motion for reconsideration having been denied by the appellate court by Resolution 7 of June
27, 2007, the present petition for review on certiorari was filed.

Petitioners maintain that they should not be held liable because respondent’s employment contract
specifically stipulates that her employment shall be governed by the Civil Service Law and Regulations
of Kuwait. They thus conclude that it was patent error for the labor tribunals and the appellate court to
apply the Labor Code provisions governing probationary employment in deciding the present case.

Further, petitioners argue that even the Philippine Overseas Employment Act (POEA) Rules relative to
master employment contracts (Part III, Sec. 2 of the POEA Rules and Regulations) accord respect to
the "customs, practices, company policies and labor laws and legislation of the host country."

Finally, petitioners posit that assuming arguendo that Philippine labor laws are applicable, given that the
foreign principal is a government agency which is immune from suit, as in fact it did not sign any
document agreeing to be held jointly and solidarily liable, petitioner ATCI cannot likewise be held liable,
more so since the Ministry’s liability had not been judicially determined as jurisdiction was not acquired
over it.

The petition fails.

Petitioner ATCI, as a private recruitment agency, cannot evade responsibility for the money claims of
Overseas Filipino workers (OFWs) which it deploys abroad by the mere expediency of claiming that its
foreign principal is a government agency clothed with immunity from suit, or that such foreign principal’s
liability must first be established before it, as agent, can be held jointly and solidarily liable.

In providing for the joint and solidary liability of private recruitment agencies with their foreign principals,
Republic Act No. 8042 precisely affords the OFWs with a recourse and assures them of immediate and
sufficient payment of what is due them. Skippers United Pacific v. Maguad 8 explains:

. . . [T]he obligations covenanted in the recruitment agreement entered into by and between the
local agent and its foreign principal are not coterminous with the term of such agreement so that
if either or both of the parties decide to end the agreement, the responsibilities of such parties towards
the contracted employees under the agreement do not at all end, but the same extends up to and until
the expiration of the employment contracts of the employees recruited and employed pursuant to the
said recruitment agreement. Otherwise, this will render nugatory the very purpose for which the
law governing the employment of workers for foreign jobs abroad was enacted. (emphasis
supplied)
The imposition of joint and solidary liability is in line with the policy of the state to protect and alleviate
the plight of the working class.9 Verily, to allow petitioners to simply invoke the immunity from suit of its
foreign principal or to wait for the judicial determination of the foreign principal’s liability before petitioner
can be held liable renders the law on joint and solidary liability inutile.

As to petitioners’ contentions that Philippine labor laws on probationary employment are not applicable
since it was expressly provided in respondent’s employment contract, which she voluntarily entered
into, that the terms of her engagement shall be governed by prevailing Kuwaiti Civil Service Laws and
Regulations as in fact POEA Rules accord respect to such rules, customs and practices of the host
country, the same was not substantiated.

Indeed, a contract freely entered into is considered the law between the parties who can establish
stipulations, clauses, terms and conditions as they may deem convenient, including the laws which they
wish to govern their respective obligations, as long as they are not contrary to law, morals, good
customs, public order or public policy.

It is hornbook principle, however, that the party invoking the application of a foreign law has the burden
of proving the law, under the doctrine of processual presumption which, in this case, petitioners failed to
discharge. The Court’s ruling in EDI-Staffbuilders Int’l., v. NLRC10 illuminates:

In the present case, the employment contract signed by Gran specifically states that Saudi Labor Laws
will govern matters not provided for in the contract (e.g. specific causes for termination, termination
procedures, etc.). Being the law intended by the parties (lex loci intentiones) to apply to the contract,
Saudi Labor Laws should govern all matters relating to the termination of the employment of Gran.

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. The foreign law is treated as a question of fact to be properly pleaded
and proved as the judge or labor arbiter cannot take judicial notice of a foreign law. He is presumed to
know only domestic or forum law.

Unfortunately for petitioner, it did not prove the pertinent Saudi laws on the matter; thus, the
International Law doctrine of presumed-identity approach or processual presumption comes into play.
Where a foreign law is not pleaded or, even if pleaded, is not proved, the presumption is that foreign
law is the same as ours. Thus, we apply Philippine labor laws in determining the issues presented
before us. (emphasis and underscoring supplied)

The Philippines does not take judicial notice of foreign laws, hence, they must not only be alleged; they
must be proven. 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 in which the record is
kept, and authenticated by the seal of his office. (emphasis supplied)

SEC. 25. What attestation of copy 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.

To prove the Kuwaiti law, petitioners submitted the following: MOA between respondent and the
Ministry, as represented by ATCI, which provides that the employee is subject to a probationary period
of one (1) year and that the host country’s Civil Service Laws and Regulations apply; a translated
copy11 (Arabic to English) of the termination letter to respondent stating that she did not pass the
probation terms, without specifying the grounds therefor, and a translated copy of the certificate of
termination,12 both of which documents were certified by Mr. Mustapha Alawi, Head of the Department
of Foreign Affairs-Office of Consular Affairs Inslamic Certification and Translation Unit; and
respondent’s letter13 of reconsideration to the Ministry, wherein she noted that in her first eight (8)
months of employment, she was given a rating of "Excellent" albeit it changed due to changes in her
shift of work schedule.

These documents, whether taken singly or as a whole, do not sufficiently prove that respondent was
validly terminated as a probationary employee under Kuwaiti civil service laws. Instead of submitting a
copy of the pertinent Kuwaiti labor laws duly authenticated and translated by Embassy officials
thereat, as required under the Rules, what petitioners submitted were mere certifications
attesting only to the correctness of the translations of the MOA and the termination letter which
does not prove at all that Kuwaiti civil service laws differ from Philippine laws and that under
such Kuwaiti laws, respondent was validly terminated. Thus the subject certifications read:

xxxx

This is to certify that the herein attached translation/s from Arabic to English/Tagalog and or vice versa
was/were presented to this Office for review and certification and the same was/were found to be in
order. This Office, however, assumes no responsibility as to the contents of the document/s.

This certification is being issued upon request of the interested party for whatever legal purpose it may
serve. (emphasis supplied) 1avvphi1

Respecting Ikdal’s joint and solidary liability as a corporate officer, the same is in order too following the
express provision of R.A. 8042 on money claims, viz:

SEC. 10. Money Claims.—Notwithstanding any provision of law to the contrary, the Labor Arbiters of
the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to
hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out
of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for
overseas deployment including claims for actual moral, exemplary and other forms of damages.

The liability of the principal/employer and the recruitment/placement agency for any and all claims
under this section shall be joint and several. This provision shall be incorporated in the contract for
overseas employment and shall be a condition precedent for its approval. The performance bond to be
filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims
or damages that may be awarded to the workers. If the recruitment/placement agency is a juridical
being, the corporate officers and directors and partners as the case may be, shall themselves be jointly
and solidarily liable with the corporation or partnership for the aforesaid claims and damages.
(emphasis and underscoring supplied)

WHEREFORE, the petition is DENIED.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 185582               February 29, 2012

TUNA PROCESSING, INC., Petitioner,

vs.
PHILIPPINE KINGFORD, INC., Respondent.

DECISION

PEREZ, J.:

Can a foreign corporation not licensed to do business in the Philippines, but which collects royalties
from entities in the Philippines, sue here to enforce a foreign arbitral award?

In this Petition for Review on Certiorari under Rule 45, petitioner Tuna Processing, Inc. (TPI), a foreign
1 

corporation not licensed to do business in the Philippines, prays that the Resolution dated 21 November
2 

2008 of the Regional Trial Court (RTC) of Makati City be declared void and the case be remanded to
the RTC for further proceedings. In the assailed Resolution, the RTC dismissed petitioner’s Petition for
Confirmation, Recognition, and Enforcement of Foreign Arbitral Award against respondent Philippine
3 

Kingford, Inc. (Kingford), a corporation duly organized and existing under the laws of the Philippines, on4 

the ground that petitioner lacked legal capacity to sue. 5

 The Antecedents

On 14 January 2003, Kanemitsu Yamaoka (hereinafter referred to as the "licensor"), co-patentee of

U.S. Patent No. 5,484,619, Philippine Letters Patent No. 31138, and Indonesian Patent No. ID0003911
(collectively referred to as the "Yamaoka Patent"), and five (5) Philippine tuna processors, namely,
6 

Angel Seafood Corporation, East Asia Fish Co., Inc., Mommy Gina Tuna Resources, Santa Cruz
Seafoods, Inc., and respondent Kingford (collectively referred to as the "sponsors"/"licensees") entered
7 

into a Memorandum of Agreement (MOA), pertinent provisions of which read:

8 

1. Background and objectives. The Licensor, co-owner of U.S.Patent No. 5,484,619,

Philippine Patent No. 31138, and Indonesian Patent No. ID0003911 xxx wishes to form an
alliance with Sponsors for purposes of enforcing his three aforementioned patents, granting
licenses under those patents, and collecting royalties.

The Sponsors wish to be licensed under the aforementioned patents in order to practice the
processes claimed in those patents in the United States, the Philippines, and Indonesia, enforce
those patents and collect royalties in conjunction with Licensor.

xxx

4. Establishment of Tuna Processors, Inc. The parties hereto agree to the establishment of

Tuna Processors, Inc. ("TPI"), a corporation established in the State of California, in order to
implement the objectives of this Agreement.

5. Bank account. TPI shall open and maintain bank accounts in the United States, which will
be used exclusively to deposit funds that it will collect and to disburse cash it will be obligated to
spend in connection with the implementation of this Agreement.

6. Ownership of TPI. TPI shall be owned by the Sponsors and Licensor. Licensor shall be
assigned one share of TPI for the purpose of being elected as member of the board of directors.
The remaining shares of TPI shall be held by the Sponsors according to their respective equity
shares.  9

xxx

The parties likewise executed a Supplemental Memorandum of Agreement dated 15 January 2003 and
10 

an Agreement to Amend Memorandum of Agreement dated 14 July 2003.

11 

Due to a series of events not mentioned in the petition, the licensees, including respondent Kingford,
withdrew from petitioner TPI and correspondingly reneged on their obligations. Petitioner submitted the
12 

dispute for arbitration before the International Centre for Dispute Resolution in the State of California,
United States and won the case against respondent. Pertinent portions of the award read:
13 

13.1 Within thirty (30) days from the date of transmittal of this Award to the Parties, pursuant to the
terms of this award, the total sum to be paid by RESPONDENT KINGFORD to CLAIMANT TPI, is the
sum of ONE MILLION SEVEN HUNDRED FIFTY THOUSAND EIGHT HUNDRED FORTY SIX
DOLLARS AND TEN CENTS ($1,750,846.10).

(A) For breach of the MOA by not paying past due assessments, RESPONDENT

KINGFORD shall pay CLAIMANT the total sum of TWO HUNDRED TWENTY NINE
THOUSAND THREE HUNDRED AND FIFTY FIVE DOLLARS AND NINETY CENTS
($229,355.90) which is 20% of MOA assessments since September 1, 2005[;]

(B) For breach of the MOA in failing to cooperate with CLAIMANT TPI in fulfilling the objectives
of the MOA, RESPONDENT KINGFORD shall pay CLAIMANT the total sum of TWO
HUNDRED SEVENTY ONE THOUSAND FOUR HUNDRED NINETY DOLLARS AND
TWENTY CENTS ($271,490.20)[;] and 14 

(C) For violation of THE LANHAM ACT and infringement of the YAMAOKA 619 PATENT,

RESPONDENT KINGFORD shall pay CLAIMANT the total sum of ONE MILLION TWO
HUNDRED FIFTY THOUSAND DOLLARS AND NO CENTS ($1,250,000.00). xxx

xxx 15

To enforce the award, petitioner TPI filed on 10 October 2007 a Petition for Confirmation, Recognition,
and Enforcement of Foreign Arbitral Award before the RTC of Makati City. The petition was raffled to
Branch 150 presided by Judge Elmo M. Alameda.
At Branch 150, respondent Kingford filed a Motion to Dismiss. After the court denied the motion for lack
16 

of merit, respondent sought for the inhibition of Judge Alameda and moved for the reconsideration of
17 

the order denying the motion. Judge Alameda inhibited himself notwithstanding "[t]he unfounded
18 

allegations and unsubstantiated assertions in the motion." Judge Cedrick O. Ruiz of Branch 61, to
19 

which the case was re-raffled, in turn, granted respondent’s Motion for Reconsideration and dismissed
the petition on the ground that the petitioner lacked legal capacity to sue in the Philippines.20

Petitioner TPI now seeks to nullify, in this instant Petition for Review on Certiorari under Rule 45, the
order of the trial court dismissing its Petition for Confirmation, Recognition, and Enforcement of Foreign
Arbitral Award.

Issue

The core issue in this case is whether or not the court a quo was correct in so dismissing the petition on
the ground of petitioner’s lack of legal capacity to sue.

Our Ruling

The petition is impressed with merit.

The Corporation Code of the Philippines expressly provides:

Sec. 133. Doing business without a license. - No foreign corporation transacting business in the
Philippines without a license, or its successors or assigns, shall be permitted to maintain or intervene in
any action, suit or proceeding in any court or administrative agency of the Philippines; but such
corporation may be sued or proceeded against before Philippine courts or administrative tribunals on
any valid cause of action recognized under Philippine laws.

It is pursuant to the aforequoted provision that the court a quo dismissed the petition. Thus:

Herein plaintiff TPI’s "Petition, etc." acknowledges that it "is a foreign corporation established in the
State of California" and "was given the exclusive right to license or sublicense the Yamaoka Patent" and
"was assigned the exclusive right to enforce the said patent and collect corresponding royalties" in the
Philippines. TPI likewise admits that it does not have a license to do business in the Philippines.

There is no doubt, therefore, in the mind of this Court that TPI has been doing business in the
Philippines, but sans a license to do so issued by the concerned government agency of the Republic of
the Philippines, when it collected royalties from "five (5) Philippine tuna processors[,] namely[,] Angel
Seafood Corporation, East Asia Fish Co., Inc., Mommy Gina Tuna Resources, Santa Cruz Seafoods,
Inc. and respondent Philippine Kingford, Inc." This being the real situation, TPI cannot be permitted to
maintain or intervene in any action, suit or proceedings in any court or administrative agency of the
Philippines." A priori, the "Petition, etc." extant of the plaintiff TPI should be dismissed for it does not
have the legal personality to sue in the Philippines.21

The petitioner counters, however, that it is entitled to seek for the recognition and enforcement of the
subject foreign arbitral award in accordance with Republic Act No. 9285 (Alternative Dispute Resolution
Act of 2004), the Convention on the Recognition and Enforcement of Foreign Arbitral Awards drafted
22 

during the United Nations Conference on International Commercial Arbitration in 1958 (New York
Convention), and the UNCITRAL Model Law on International Commercial Arbitration (Model Law), as 23 

none of these specifically requires that the party seeking for the enforcement should have legal capacity
to sue. It anchors its argument on the following:

In the present case, enforcement has been effectively refused on a ground not found in the [Alternative
Dispute Resolution Act of 2004], New York Convention, or Model Law. It is for this reason that TPI has
brought this matter before this most Honorable Court, as it [i]s imperative to clarify whether the
Philippines’ international obligations and State policy to strengthen arbitration as a means of dispute
resolution may be defeated by misplaced technical considerations not found in the relevant laws. 24

Simply put, how do we reconcile the provisions of the Corporation Code of the Philippines on one hand,
and the Alternative Dispute Resolution Act of 2004, the New York Convention and the Model Law on
the other?

In several cases, this Court had the occasion to discuss the nature and applicability of the Corporation
Code of the Philippines, a general law, viz-a-viz other special laws. Thus, in Koruga v. Arcenas, Jr., this 25 

Court rejected the application of the Corporation Code and applied the New Central Bank Act. It
ratiocinated:

Koruga’s invocation of the provisions of the Corporation Code is misplaced. In an earlier case with
similar antecedents, we ruled that:
"The Corporation Code, however, is a general law applying to all types of corporations, while the New
Central Bank Act regulates specifically banks and other financial institutions, including the dissolution
and liquidation thereof. As between a general and special law, the latter shall prevail – generalia
specialibus non derogant." (Emphasis supplied) 26

Further, in the recent case of Hacienda Luisita, Incorporated v. Presidential Agrarian Reform
Council, this Court held:
27 

Without doubt, the Corporation Code is the general law providing for the formation, organization and
regulation of private corporations. On the other hand, RA 6657 is the special law on agrarian reform. As
between a general and special law, the latter shall prevail—generalia specialibus non derogant. 28

Following the same principle, the Alternative Dispute Resolution Act of 2004 shall apply in this case as
the Act, as its title - An Act to Institutionalize the Use of an Alternative Dispute Resolution System in the
Philippines and to Establish the Office for Alternative Dispute Resolution, and for Other Purposes
- would suggest, is a law especially enacted "to actively promote party autonomy in the resolution of
disputes or the freedom of the party to make their own arrangements to resolve their disputes." It 29 

specifically provides exclusive grounds available to the party opposing an application for recognition
and enforcement of the arbitral award. 30

Inasmuch as the Alternative Dispute Resolution Act of 2004, a municipal law, applies in the instant
petition, we do not see the need to discuss compliance with international obligations under the New
York Convention and the Model Law. After all, both already form part of the law.

In particular, the Alternative Dispute Resolution Act of 2004 incorporated the New York Convention in

the Act by specifically providing:

SEC. 42. Application of the New York Convention. - The New York Convention shall govern the
recognition and enforcement of arbitral awards covered by the said Convention.

xxx

SEC. 45. Rejection of a Foreign Arbitral Award. - A party to a foreign arbitration proceeding may
oppose an application for recognition and enforcement of the arbitral award in accordance with the
procedural rules to be promulgated by the Supreme Court only on those grounds enumerated under
Article V of the New York Convention. Any other ground raised shall be disregarded by the regional trial
court.

It also expressly adopted the Model Law, to wit:

Sec. 19. Adoption of the Model Law on International Commercial Arbitration. International commercial

arbitration shall be governed by the Model Law on International Commercial Arbitration (the "Model
Law") adopted by the United Nations Commission on International Trade Law on June 21, 1985 xxx."

Now, does a foreign corporation not licensed to do business in the Philippines have legal capacity to
sue under the provisions of the Alternative Dispute Resolution Act of 2004? We answer in the
affirmative.

Sec. 45 of the Alternative Dispute Resolution Act of 2004 provides that the opposing party in an
application for recognition and enforcement of the arbitral award may raise only those grounds that
were enumerated under Article V of the New York Convention, to wit:

Article V

1. Recognition and enforcement of the award may be refused, at the request of the party
against whom it is invoked, only if that party furnishes to the competent authority where the
recognition and enforcement is sought, proof that:

(a) The parties to the agreement referred to in article II were, under the law applicable to
them, under some incapacity, or the said agreement is not valid under the law to which
the parties have subjected it or, failing any indication thereon, under the law of the
country where the award was made; or

(b) The party against whom the award is invoked was not given proper notice of the
appointment of the arbitrator or of the arbitration proceedings or was otherwise unable
to present his case; or
 (c) The award deals with a difference not contemplated by or not falling within the terms
of the submission to arbitration, or it contains decisions on matters beyond the scope of
the submission to arbitration, provided that, if the decisions on matters submitted to
arbitration can be separated from those not so submitted, that part of the award which
contains decisions on matters submitted to arbitration may be recognized and enforced;
or

(d) The composition of the arbitral authority or the arbitral procedure was not in
accordance with the agreement of the parties, or, failing such agreement, was not in
accordance with the law of the country where the arbitration took place; or

(e) The award has not yet become binding on the parties, or has been set aside or
suspended by a competent authority of the country in which, or under the law of which,
that award was made.

2. Recognition and enforcement of an arbitral award may also be refused if the competent
authority in the country where recognition and enforcement is sought finds that:

(a) The subject matter of the difference is not capable of settlement by arbitration under
the law of that country; or

(b) The recognition or enforcement of the award would be contrary to the public policy of
that country.

Clearly, not one of these exclusive grounds touched on the capacity to sue of the party seeking the
recognition and enforcement of the award.

Pertinent provisions of the Special Rules of Court on Alternative Dispute Resolution, which was 31 

promulgated by the Supreme Court, likewise support this position.

Rule 13.1 of the Special Rules provides that "[a]ny party to a foreign arbitration may petition the court to
recognize and enforce a foreign arbitral award." The contents of such petition are enumerated in Rule
13.5. Capacity to sue is not included. Oppositely, in the Rule on local arbitral awards or arbitrations in
32 

instances where "the place of arbitration is in the Philippines," it is specifically required that a petition
33 

"to determine any question concerning the existence, validity and enforceability of such arbitration
agreement" available to the parties before the commencement of arbitration and/or a petition for
34 

"judicial relief from the ruling of the arbitral tribunal on a preliminary question upholding or declining its
jurisdiction" after arbitration has already commenced should state "[t]he facts showing that the persons
35 

named as petitioner or respondent have legal capacity to sue or be sued." 36

Indeed, it is in the best interest of justice that in the enforecement of a foreign arbitral award, we deny
availment by the losing party of the rule that bars foreign corporations not licensed to do business in the
Philippines from maintaining a suit in our courts. When a party enters into a contract containing a
foreign arbitration clause and, as in this case, in fact submits itself to arbitration, it becomes bound by
the contract, by the arbitration and by the result of arbitration, conceding thereby the capacity of the
other party to enter into the contract, participate in the arbitration and cause the implementation of the
result. Although not on all fours with the instant case, also worthy to consider is the

wisdom of then Associate Justice Flerida Ruth P. Romero in her Dissenting Opinion in Asset
Privatization Trust v. Court of Appeals, to wit:
37 

xxx Arbitration, as an alternative mode of settlement, is gaining adherents in legal and judicial circles
here and abroad. If its tested mechanism can simply be ignored by an aggrieved party, one who, it must
be stressed, voluntarily and actively participated in the arbitration proceedings from the very beginning,
it will destroy the very essence of mutuality inherent in consensual contracts. 38

Clearly, on the matter of capacity to sue, a foreign arbitral award should be respected not because it is
favored over domestic laws and procedures, but because Republic Act No. 9285 has certainly erased
any conflict of law question.

Finally, even assuming, only for the sake of argument, that the court a quo correctly observed that
the Model Law, not the New York Convention, governs the subject arbitral award, petitioner may still
39 

seek recognition and enforcement of the award in Philippine court, since the Model Law prescribes
substantially identical exclusive grounds for refusing recognition or enforcement. 40

Premises considered, petitioner TPI, although not licensed to do business in the Philippines, may seek
recognition and enforcement of the foreign arbitral award in accordance with the provisions of
the Alternative Dispute Resolution Act of 2004.
 II

The remaining arguments of respondent Kingford are likewise unmeritorious.

First. There is no need to consider respondent’s contention that petitioner TPI improperly raised a
question of fact when it posited that its act of entering into a MOA should not be considered "doing
business" in the Philippines for the purpose of determining capacity to sue. We reiterate that the foreign
corporation’s capacity to sue in the Philippines is not material insofar as the recognition and
enforcement of a foreign arbitral award is concerned.

Second. Respondent cannot fault petitioner for not filing a motion for reconsideration of the assailed
Resolution dated 21 November 2008 dismissing the case. We have, time and again, ruled that the prior
filing of a motion for reconsideration is not required in certiorari under Rule 45.
41

Third. While we agree that petitioner failed to observe the principle of hierarchy of courts, which, under
ordinary circumstances, warrants the outright dismissal of the case, we opt to relax the rules following
42 

the pronouncement in Chua v. Ang, to wit:

43 

[I]t must be remembered that [the principle of hierarchy of courts] generally applies to cases involving
conflicting factual allegations. Cases which depend on disputed facts for decision cannot be brought
immediately before us as we are not triers of facts. A strict application of this rule may be excused
44 

when the reason behind the rule is not present in a case, as in the present case, where the issues are
not factual but purely legal.  In these types of questions, this Court has the ultimate say so that we
1âwphi1

merely abbreviate the review process if we, because of the unique circumstances of a case, choose to
hear and decide the legal issues outright. 45

Moreover, the novelty and the paramount importance of the issue herein raised should be seriously
considered. Surely, there is a need to take cognizance of the case not only to guide the bench and the
46 

bar, but if only to strengthen arbitration as a means of dispute resolution, and uphold the policy of the
State embodied in the Alternative Dispute Resolution Act of 2004, to wit:

Sec. 2. Declaration of Policy. - It is hereby declared the policy of the State to actively promote party
autonomy in the resolution of disputes or the freedom of the party to make their own arrangements to
resolve their disputes. Towards this end, the State shall encourage and actively promote the use of
Alternative Dispute Resolution (ADR) as an important means to achieve speedy and impartial justice
and declog court dockets. xxx

Fourth. As regards the issue on the validity and enforceability of the foreign arbitral award, we leave its
determination to the court a quo where its recognition and enforcement is being sought.

Fifth. Respondent claims that petitioner failed to furnish the court of origin a copy of the motion for time
to file petition for review on certiorari before the petition was filed with this Court. We, however, find
47 

petitioner’s reply in order. Thus:

26. Admittedly, reference to "Branch 67" in petitioner TPI’s "Motion for Time to File a Petition for Review
on Certiorari under Rule 45" is a typographical error. As correctly pointed out by respondent Kingford,
the order sought to be assailed originated from Regional Trial Court, Makati City, Branch 61.

27. xxx Upon confirmation with the Regional Trial Court, Makati City, Branch 61, a copy of petitioner
TPI’s motion was received by the Metropolitan Trial Court, Makati City, Branch 67. On 8 January 2009,
the motion was forwarded to the Regional Trial Court, Makati City, Branch 61. 48

All considered, petitioner TPI, although a foreign corporation not licensed to do business in the
Philippines, is not, for that reason alone, precluded from filing the Petition for Confirmation,
Recognition, and Enforcement of Foreign Arbitral Award before a Philippine court.

WHEREFORE, the Resolution dated 21 November 2008 of the Regional Trial Court, Branch 61, Makati
City in Special Proceedings No. M-6533 is hereby REVERSED and SET ASIDE. The case
is REMANDED to Branch 61 for further proceedings.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-23678             June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased.

PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.

Vicente R. Macasaet and Jose D. Villena for oppositors appellants.

Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.

BENGZON, J.P., J.:

This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance
of Manila dated April 30, 1964, approving the project of partition filed by the executor in Civil Case No.
37089 therein. 1äwphï1.ñët

The facts of the case are as follows:

Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first
wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis
(who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his
second wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis,
Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria
Cristina Bellis and Miriam Palma Bellis.

On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all
taxes, obligations, and expenses of administration are paid for, his distributable estate should be
divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b)
P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma
Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the remainder shall
go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A.
Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E.
Bellis, in equal shares.1äwphï1.ñët

Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His will
was admitted to probate in the Court of First Instance of Manila on September 15, 1958.

The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including
the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3)
illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts
totalling P40,000.00 each in satisfaction of their respective legacies, or a total of P120,000.00, which it
released from time to time according as the lower court approved and allowed the various motions or
petitions filed by the latter three requesting partial advances on account of their respective legacies.

On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its
"Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter
alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares of stock amounting
to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the
amount of P40,000.00 each or a total of P120,000.00. In the project of partition, the executor —
pursuant to the "Twelfth" clause of the testator's Last Will and Testament — divided the residuary estate
into seven equal portions for the benefit of the testator's seven legitimate children by his first and
second marriages.

On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to
the project of partition on the ground that they were deprived of their legitimes as illegitimate children
and, therefore, compulsory heirs of the deceased.

Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced
by the registry receipt submitted on April 27, 1964 by the executor. 1

After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on
April 30, 1964, issued an order overruling the oppositions and approving the executor's final account,
report and administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied the
national law of the decedent, which in this case is Texas law, which did not provide for legitimes.

Their respective motions for reconsideration having been denied by the lower court on June 11, 1964,
oppositors-appellants appealed to this Court to raise the issue of which law must apply — Texas law or
Philippine law.

In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by
this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent
where the decedent is a national of one country, and a domicile of another. In the present case, it is not
disputed that the decedent was both a national of Texas and a domicile thereof at the time of his
death.2 So that even assuming Texas has a conflict of law rule providing that the domiciliary system
(law of the domicile) should govern, the same would not result in a reference back (renvoi) to Philippine
law, but would still refer to Texas law. Nonetheless, if Texas has a conflicts rule adopting the situs
theory (lex rei sitae) calling for the application of the law of the place where the properties are situated,
renvoi would arise, since the properties here involved are found in the Philippines. In the absence,
however, of proof as to the conflict of law rule of Texas, it should not be presumed different from
ours.3 Appellants' position is therefore not rested on the doctrine of renvoi. As stated, they never
invoked nor even mentioned it in their arguments. Rather, they argue that their case falls under the
circumstances mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil Code.

Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in
intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the
amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the capacity
to succeed. They provide that —
 ART. 16. Real property as well as personal property is subject to the law of the country where it
is situated.

However, intestate and testamentary successions, both with respect to the order of succession
and to the amount of successional rights and to the intrinsic validity of testamentary provisions,
shall be regulated by the national law of the person whose succession is under consideration,
whatever may he the nature of the property and regardless of the country wherein said property
may be found.

ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.

Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that —

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.

prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct. Precisely,
Congress deleted the phrase, "notwithstanding the provisions of this and the next preceding article"
when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing
without substantial change the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It
must have been their purpose to make the second paragraph of Art. 16 a specific provision in itself
which must be applied in testate and intestate succession. As further indication of this legislative intent,
Congress added a new provision, under Art. 1039, which decrees that capacity to succeed is to be
governed by the national law of the decedent.

It is therefore evident that whatever public policy or good customs may be involved in our System of
legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it
has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national
law. Specific provisions must prevail over general ones.

Appellants would also point out that the decedent executed two wills — one to govern his Texas estate
and the other his Philippine estate — arguing from this that he intended Philippine law to govern his
Philippine estate. Assuming that such was the decedent's intention in executing a separate Philippine
will, it would not alter the law, for as this Court ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision
in a foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law
and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those
matters that Article 10 — now Article 16 — of the Civil Code states said national law should govern.

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and
that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic
validity of the provision of the will and the amount of successional rights are to be determined under
Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis.

Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So
ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.

Footnotes

1
He later filed a motion praying that as a legal heir he be included in this case as one of the
oppositors-appellants; to file or adopt the opposition of his sisters to the project of partition; to
submit his brief after paying his proportionate share in the expenses incurred in the printing of
the record on appeal; or to allow him to adopt the briefs filed by his sisters — but this Court
resolved to deny the motion.

2
San Antonio, Texas was his legal residence.

3
Lim vs. Collector, 36 Phil. 472; In re Testate Estate of Suntay, 95 Phil. 500.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 162894             February 26, 2008

RAYTHEON INTERNATIONAL, INC., petitioner,

vs.
STOCKTON W. ROUZIE, JR., respondent.

DECISION

TINGA, J.:

Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure
which seeks the reversal of the Decision1 and Resolution2 of the Court of Appeals in CA-G.R. SP No.
67001 and the dismissal of the civil case filed by respondent against petitioner with the trial court.

As culled from the records of the case, the following antecedents appear:

Sometime in 1990, Brand Marine Services, Inc. (BMSI), a corporation duly organized and existing under
the laws of the State of Connecticut, United States of America, and respondent Stockton W. Rouzie, Jr.,
an American citizen, entered into a contract whereby BMSI hired respondent as its representative to
negotiate the sale of services in several government projects in the Philippines for an agreed
remuneration of 10% of the gross receipts. On 11 March 1992, respondent secured a service contract
with the Republic of the Philippines on behalf of BMSI for the dredging of rivers affected by the Mt.
Pinatubo eruption and mudflows.3
On 16 July 1994, respondent filed before the Arbitration Branch of the National Labor Relations
Commission (NLRC) a suit against BMSI and Rust International, Inc. (RUST), Rodney C. Gilbert and
Walter G. Browning for alleged nonpayment of commissions, illegal termination and breach of
employment contract.4 On 28 September 1995, Labor Arbiter Pablo C. Espiritu, Jr. rendered judgment
ordering BMSI and RUST to pay respondent’s money claims. 5 Upon appeal by BMSI, the NLRC
reversed the decision of the Labor Arbiter and dismissed respondent’s complaint on the ground of lack
of jurisdiction.6 Respondent elevated the case to this Court but was dismissed in a Resolution dated 26
November 1997. The Resolution became final and executory on 09 November 1998.

On 8 January 1999, respondent, then a resident of La Union, instituted an action for damages before
the Regional Trial Court (RTC) of Bauang, La Union. The Complaint, 7 docketed as Civil Case No. 1192-
BG, named as defendants herein petitioner Raytheon International, Inc. as well as BMSI and RUST, the
two corporations impleaded in the earlier labor case. The complaint essentially reiterated the allegations
in the labor case that BMSI verbally employed respondent to negotiate the sale of services in
government projects and that respondent was not paid the commissions due him from the Pinatubo
dredging project which he secured on behalf of BMSI. The complaint also averred that BMSI and RUST
as well as petitioner itself had combined and functioned as one company.

In its Answer,8 petitioner alleged that contrary to respondent’s claim, it was a foreign corporation duly
licensed to do business in the Philippines and denied entering into any arrangement with respondent or
paying the latter any sum of money. Petitioner also denied combining with BMSI and RUST for the
purpose of assuming the alleged obligation of the said companies. 9 Petitioner also referred to the NLRC
decision which disclosed that per the written agreement between respondent and BMSI and RUST,
denominated as "Special Sales Representative Agreement," the rights and obligations of the parties
shall be governed by the laws of the State of Connecticut. 10 Petitioner sought the dismissal of the
complaint on grounds of failure to state a cause of action and forum non conveniens and prayed for
damages by way of compulsory counterclaim.11

On 18 May 1999, petitioner filed an Omnibus Motion for Preliminary Hearing Based on Affirmative
Defenses and for Summary Judgment12 seeking the dismissal of the complaint on grounds of forum non
conveniens and failure to state a cause of action. Respondent opposed the same. Pending the
resolution of the omnibus motion, the deposition of Walter Browning was taken before the Philippine
Consulate General in Chicago. 13

In an Order14 dated 13 September 2000, the RTC denied petitioner’s omnibus motion. The trial court
held that the factual allegations in the complaint, assuming the same to be admitted, were sufficient for
the trial court to render a valid judgment thereon. It also ruled that the principle of forum non
conveniens was inapplicable because the trial court could enforce judgment on petitioner, it being a
foreign corporation licensed to do business in the Philippines. 15

Petitioner filed a Motion for Reconsideration 16 of the order, which motion was opposed by
respondent.17 In an Order dated 31 July 2001,18 the trial court denied petitioner’s motion. Thus, it filed a
Rule 65 Petition19 with the Court of Appeals praying for the issuance of a writ of certiorari and a writ of
injunction to set aside the twin orders of the trial court dated 13 September 2000 and 31 July 2001 and
to enjoin the trial court from conducting further proceedings. 20

On 28 August 2003, the Court of Appeals rendered the assailed Decision 21 denying the petition for
certiorari for lack of merit. It also denied petitioner’s motion for reconsideration in the assailed
Resolution issued on 10 March 2004.22

The appellate court held that although the trial court should not have confined itself to the allegations in
the complaint and should have also considered evidence aliunde in resolving petitioner’s omnibus
motion, it found the evidence presented by petitioner, that is, the deposition of Walter Browning,
insufficient for purposes of determining whether the complaint failed to state a cause of action. The
appellate court also stated that it could not rule one way or the other on the issue of whether the
corporations, including petitioner, named as defendants in the case had indeed merged together based
solely on the evidence presented by respondent. Thus, it held that the issue should be threshed out
during trial.23 Moreover, the appellate court deferred to the discretion of the trial court when the latter
decided not to desist from assuming jurisdiction on the ground of the inapplicability of the principle
of forum non conveniens.

Hence, this petition raising the following issues:

WHETHER OR NOT THE COURT OF APPEALS ERRED IN REFUSING TO DISMISS THE

COMPLAINT FOR FAILURE TO STATE A CAUSE OF ACTION AGAINST RAYTHEON
INTERNATIONAL, INC.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN REFUSING TO DISMISS THE

COMPLAINT ON THE GROUND OF FORUM NON CONVENIENS.24
Incidentally, respondent failed to file a comment despite repeated notices. The Ceferino Padua Law
Office, counsel on record for respondent, manifested that the lawyer handling the case, Atty. Rogelio
Karagdag, had severed relations with the law firm even before the filing of the instant petition and that it
could no longer find the whereabouts of Atty. Karagdag or of respondent despite diligent efforts. In a
Resolution25 dated 20 November 2006, the Court resolved to dispense with the filing of a comment.

The instant petition lacks merit.

Petitioner mainly asserts that the written contract between respondent and BMSI included a valid choice
of law clause, that is, that the contract shall be governed by the laws of the State of Connecticut. It also
mentions the presence of foreign elements in the dispute – namely, the parties and witnesses involved
are American corporations and citizens and the evidence to be presented is located outside the
Philippines – that renders our local courts inconvenient forums. Petitioner theorizes that the foreign
elements of the dispute necessitate the immediate application of the doctrine of forum non conveniens.

Recently in Hasegawa v. Kitamura,26 the Court outlined three consecutive phases involved in judicial
resolution of conflicts-of-laws problems, namely: jurisdiction, choice of law, and recognition and
enforcement of judgments. Thus, in the instances 27 where the Court held that the local judicial
machinery was adequate to resolve controversies with a foreign element, the following requisites had to
be proved: (1) that the Philippine Court is one to which the parties may conveniently resort; (2) that the
Philippine Court is in a position to make an intelligent decision as to the law and the facts; and (3) that
the Philippine Court has or is likely to have the power to enforce its decision. 28

On the matter of jurisdiction over a conflicts-of-laws problem where the case is filed in a Philippine court
and where the court has jurisdiction over the subject matter, the parties and the res, it may or can
proceed to try the case even if the rules of conflict-of-laws or the convenience of the parties point to a
foreign forum. This is an exercise of sovereign prerogative of the country where the case is filed. 29

Jurisdiction over the nature and subject matter of an action is conferred by the Constitution and the
law30 and by the material allegations in the complaint, irrespective of whether or not the plaintiff is
entitled to recover all or some of the claims or reliefs sought therein. 31 Civil Case No. 1192-BG is an
action for damages arising from an alleged breach of contract. Undoubtedly, the nature of the action
and the amount of damages prayed are within the jurisdiction of the RTC.

As regards jurisdiction over the parties, the trial court acquired jurisdiction over herein respondent (as
party plaintiff) upon the filing of the complaint. On the other hand, jurisdiction over the person of
petitioner (as party defendant) was acquired by its voluntary appearance in court. 32

That the subject contract included a stipulation that the same shall be governed by the laws of the State
of Connecticut does not suggest that the Philippine courts, or any other foreign tribunal for that matter,
are precluded from hearing the civil action. Jurisdiction and choice of law are two distinct concepts.
Jurisdiction considers whether it is fair to cause a defendant to travel to this state; choice of law asks
the further question whether the application of a substantive law which will determine the merits of the
case is fair to both parties.33 The choice of law stipulation will become relevant only when the
substantive issues of the instant case develop, that is, after hearing on the merits proceeds before the
trial court.

Under the doctrine of forum non conveniens, a court, in conflicts-of-laws cases, may refuse impositions
on its jurisdiction where it is not the most "convenient" or available forum and the parties are not
precluded from seeking remedies elsewhere.34 Petitioner’s averments of the foreign elements in the
instant case are not sufficient to oust the trial court of its jurisdiction over Civil Case No. No. 1192-BG
and the parties involved.

Moreover, the propriety of dismissing a case based on the principle of forum non conveniens requires a
factual determination; hence, it is more properly considered as a matter of defense. While it is within the
discretion of the trial court to abstain from assuming jurisdiction on this ground, it should do so only after
vital facts are established, to determine whether special circumstances require the court’s desistance. 35

Finding no grave abuse of discretion on the trial court, the Court of Appeals respected its conclusion
that it can assume jurisdiction over the dispute notwithstanding its foreign elements. In the same
manner, the Court defers to the sound discretion of the lower courts because their findings are binding
on this Court.

Petitioner also contends that the complaint in Civil Case No. 1192-BG failed to state a cause of action
against petitioner. Failure to state a cause of action refers to the insufficiency of allegation in the
pleading.36 As a general rule, the elementary test for failure to state a cause of action is whether the
complaint alleges facts which if true would justify the relief demanded. 37
The complaint alleged that petitioner had combined with BMSI and RUST to function as one company.
Petitioner contends that the deposition of Walter Browning rebutted this allegation. On this score, the
resolution of the Court of Appeals is instructive, thus:

x x x Our examination of the deposition of Mr. Walter Browning as well as other documents
produced in the hearing shows that these evidence aliunde are not quite sufficient for us to
mete a ruling that the complaint fails to state a cause of action.

Annexes "A" to "E" by themselves are not substantial, convincing and conclusive proofs that
Raytheon Engineers and Constructors, Inc. (REC) assumed the warranty obligations of
defendant Rust International in the Makar Port Project in General Santos City, after Rust
International ceased to exist after being absorbed by REC. Other documents already submitted
in evidence are likewise meager to preponderantly conclude that Raytheon International, Inc.,
Rust International[,] Inc. and Brand Marine Service, Inc. have combined into one company, so
much so that Raytheon International, Inc., the surviving company (if at all) may be held liable for
the obligation of BMSI to respondent Rouzie for unpaid commissions. Neither these documents
clearly speak otherwise.38

As correctly pointed out by the Court of Appeals, the question of whether petitioner, BMSI and RUST
merged together requires the presentation of further evidence, which only a full-blown trial on the merits
can afford.

WHEREFORE, the instant petition for review on certiorari is DENIED. The Decision and Resolution of
the Court of Appeals in CA-G.R. SP No. 67001 are hereby AFFIRMED. Costs against petitioner.

SO ORDERED.

DANTE O. TINGA
Associate Justice

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 126603 June 29, 1998

ESTRELLITA J. TAMANO, petitioner,
vs.
HON. RODOLFO A. ORTIZ, Presiding Judge, RTC-Br. 89, Quezon City, HAJA PUTRI ZORAYDA A.
TAMANO, ADIB A. TAMANO and the HON. COURT OF APPEALS, respondents.

BELLOSILLO, J.:

This Petition for Review on Certiorari seeks to reverse and set aside the decision of the Court of
Appeals of 30 September 1996 in CA-G.R. SP. No. 39656 which affirmed the decision of the Regional
Trial Court-Br. 89, Quezon City, denying the motion to dismiss as well as the motion for reconsideration
filed by petitioner Estrellita J. Tamano.

On 31 May 1958 Senator Mamintal Abdul Jabar Tamano (Tamano) married private respondent Haja
Putri Zorayda A. Tamano (Zorayda) in civil rites. Their marriage supposedly remained valid and
subsisting until his death on 18 May 1994. Prior to his death, particularly on 2 June 1993, Tamano also
married petitioner Estrellita J. Tamano (Estrellita) in civil rites in Malabang, Lanao del Sur.
On 23 November 1994 private respondent Zorayda joined by her son Adib A. Tamano (Adib) filed
a Complaint for Declaration of Nullify of Marriage of Tamano and Estrellita on the ground that it was
bigamous. They contended that Tamano and Estrellita misrepresented themselves
as divorced and single, respectively, thus making the entries in the marriage contract false and
fraudulent.

Private respondents alleged that Tamano never divorced Zorayda and that Estrellita was
not single when she married Tamano as the decision annulling her previous marriage with Romeo C.
Llave never became final and executory for non-compliance with publication requirements.

Estrellita filed a motion to dismiss alleging that the Regional Trial Court of Quezon City was without
jurisdiction over the subject and nature of the action. She alleged that "only a party to the marriage"
could file an action for annulment of marriage against the other spouse,   hence, it was only Tamano
1

who could file an action for annulment of their marriage. Petitioner likewise contended that
since Tamano and Zorayda were both Muslims and married in Muslim rites the jurisdiction to
hear and try the instant case was vested in the shari'a courts pursuant to Art. 155 of the Code of
Muslim Personal Laws.

The lower court denied the motion to dismiss and ruled that the instant case was properly
cognizable by the Regional Trial Court of Quezon City since Estrellita and Tamano were married
in accordance with the Civil Code and not exclusively in accordance with PD No. 1083   or 2

the Code of Muslim Personal laws. The motion for reconsideration was likewise denied; hence,
petitioner filed the instant petition with this Court seeking to set aside the 18 July 1995 order of
respondent presiding judge of the RTC-Br. 89, Quezon City, denying petitioner's motion to
dismiss and the 22 August 1995 order denying reconsideration thereof.

In a Resolution dated 13 December 1995 we referred the case to the Court of Appeals for
consolidation with G.R. No. 118371. Zorayda and Adib A. Tamano however filed a motion, which
the Court of Appeals granted, to resolve the Complaint for Declaration of Nullity of
Marriage ahead of the other consolidated cases.

The Court of Appeals ruled that the instant case would fall under the exclusive jurisdiction
of shari'a courts only when filed in places where there are shari'a court. But in places where
there are no shari'a courts, like Quezon City, the instant case could properly be filed before the
Regional Trial Court.

Petitioner is now before us reiterating her earlier argument that it is the shari'a court and not the
Regional Trial Court which has jurisdiction over the subject and nature of the action.

Under The Judiciary Reorganization Act of 1980,   Regional Trial Courts have jurisdiction over all
3

actions involving the contract of marriage and marital relations.   Personal actions, such as the
4

instant complaint for declaration of nullity of marriage, may be commenced and tried where
the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the
principal defendants resides, at the election of the plaintiff.   There should be no question by
5

now that what determines the nature of an action and correspondingly the court which has
jurisdiction over it are the allegations made by the plaintiff in this case.   In the complaint for
6

declaration of nullity of marriage filed by private respondents herein, it was alleged that
Estrellita and Tamano were married in accordance with the provisions of the Civil Code. Never
was it mentioned that Estrellita and Tamano were married under Muslim laws or PD No. 1083.
Interestingly, Estrellita never stated in her Motion to Dismiss that she and Tamano were married
under Muslim laws. That she was in fact married to Tamano under Muslim laws was first
mentioned only in her Motion for Reconsideration.

Nevertheless, the Regional Trial Court was not divested of jurisdiction to hear and try the instant
case despite the allegation in the Motion for Reconsideration that Estrellita and Tamano were
likewise married in Muslim rites. This is because a court's jurisdiction cannot be made to
depend upon defenses set up in the answer, in a motion to dismiss, or in a motion for
reconsideration, but only upon the allegations of the complaint.   Jurisdiction over the subject
7

matter of a case is determined from the allegations of the complaint as the latter comprises a
concise statement of the ultimate facts constituting the plaintiff's causes of action.  8

Petitioner argues that the shari'a courts have jurisdiction over the instant suit pursuant to Art.
13, Title II, PD No. 1083,   which provides —
9

Art. 13. Application. — (1) The provisions of this Title shall apply to marriage and
divorce wherein both parties are Muslims, or wherein only the male party is a
Muslim and the marriage is solemnized in accordance with Muslim law or this
Code in any part of the Philippines.
 (2) In case of a marriage between a Muslim and a non-Muslim, solemnized not in
accordance with Muslim law or this Code, the Civil Code of the Philippines shall
apply.

(3) Subject to the provisions of the preceding paragraphs, the essential requisites
and legal impediments to marriage, divorce, paternity and filiation, guardianship
and custody of minors, support and maintenance, claims for customary dower
(mahr), betrothal, breach of contract to marry, solemnization and registration of
marriage and divorce, rights and obligations between husband and wife, parental
authority, and the property relations between husband and wife shall be governed
by this Code and other applicable Muslim laws.

As alleged in the complaint, petitioner and Tamano were married in accordance with the Civil
Code. Hence, contrary to the position of petitioner, the Civil Code is applicable in the instant
case. Assuming that indeed petitioner and Tamano were likewise married under Muslim laws,
the same would still fall under the general original jurisdiction of the Regional Trial Courts.

Article 13 of PD No. 1083 does not provide for a situation where the parties were married both in
civil and Muslim rites. Consequently, the shari'a courts are not vested with original
and exclusive jurisdiction when it comes to marriages celebrated under both civil and Muslim
laws. Consequently, the Regional Trial Courts are not divested of their general original
jurisdiction under Sec. 19, par. (6) of BP Blg. 129 which provides —

Sec. 19. Jurisdiction in Civil Cases. — Regional Trial Courts shall exercise

exclusive original jurisdiction: . . . (6) In all cases not within the exclusive
jurisdiction of any court, tribunal, person or body exercising judicial or quasi-
judicial functions . . .

WHEREFORE, the instant petition is DENIED. The decision of the Court of Appeals sustaining
the 18 July 1995 and 22 August 1995 orders of the Regional Trial Court — Br. 89, Quezon City,
denying the motion to dismiss and reconsideration thereof, is AFFIRMED. Let the records of this
case be immediately remanded to the court of origin for further proceedings until terminated.

SO ORDERED.

Davide, Jr., Vitug, Panganiban and Quisumbing, JJ., concur.