Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No.

80718 January 29, 1988 FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners, vs. COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUIS BERNAL, JR., HEIRS OF MARISSA BERNAL, namely, GLICERIA DELA CRUZ BERNAL and LUIS BERNAL, SR., respondents. RESOLUTION CORTES, J.: This special civil action for certiorari seeks to declare null and void two (2) resolutions of the Special First Division of the Court of Appeals in the case of Luis Bernal, Sr., et al. v. Felisa Perdosa De Roy, et al., CA-G.R. CV No. 07286. The first resolution promulgated on 30 September 1987 denied petitioners' motion for extension of time to file a motion for reconsideration and directed entry of judgment since the decision in said case had become final; and the second Resolution dated 27 October 1987 denied petitioners' motion for reconsideration for having been filed out of time. At the outset, this Court could have denied the petition outright for not being verified as required by Rule 65 section 1 of the Rules of Court. However, even if the instant petition did not suffer from this defect, this Court, on procedural and substantive grounds, would still resolve to deny it. The facts of the case are undisputed. The firewall of a burned-out building owned by petitioners collapsed and destroyed the tailoring shop occupied by the family of private respondents, resulting in injuries to private respondents and the death of Marissa Bernal, a daughter. Private respondents had been warned by petitioners to vacate their shop in view of its proximity to the weakened wall but the former failed to do so. On the basis of the foregoing facts, the Regional Trial Court. First Judicial Region, Branch XXXVIII, presided by the Hon. Antonio M. Belen, rendered judgment finding petitioners guilty of gross negligence and awarding damages to private respondents. On appeal, the decision of the trial court was affirmed in toto by the Court of Appeals in a decision promulgated on August 17, 1987, a copy of which was received by petitioners on August 25, 1987. On September 9, 1987, the last day of the fifteen-day period to file an appeal, petitioners filed a motion for extension of time to file a motion for reconsideration, which was eventually denied by the appellate court in the Resolution of September 30, 1987. Petitioners filed their motion for reconsideration on September 24, 1987 but this was denied in the Resolution of October 27, 1987. This Court finds that the Court of Appeals did not commit a grave abuse of discretion when it denied petitioners' motion for extension of time to file a motion for reconsideration, directed entry of judgment and denied their motion for reconsideration. It correctly applied the rule laid down in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5, 1985,138 SCRA 461, that the fifteen-day period for appealing or for filing a motion for reconsideration cannot be extended. In its Resolution denying the motion for reconsideration, promulgated on July 30, 1986 (142 SCRA 208), this Court en banc restated and clarified the rule, to wit: Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that no motion for extension of time to file a motion for reconsideration may be filed with the Metropolitan or Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court. Such a motion may be filed only in cases pending with the Supreme Court as the court of last resort, which may in its sound discretion either grant or deny the extension requested. (at p.

212) Lacsamana v. Second Special Cases Division of the intermediate Appellate Court, [G.R. No. 73146-53, August 26, 1986, 143 SCRA 643], reiterated the rule and went further to restate and clarify the modes and periods of appeal. Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986,144 SCRA 161],stressed the prospective application of said rule, and explained the operation of the grace period, to wit: In other words, there is a one-month grace period from the promulgation on May 30, 1986 of the Court's Resolution in the clarificatory Habaluyas case, or up to June 30, 1986, within which the rule barring extensions of time to file motions for new trial or reconsideration is, as yet, not strictly enforceable. Since petitioners herein filed their motion for extension on February 27, 1986, it is still within the grace period, which expired on June 30, 1986, and may still be allowed. This grace period was also applied in Mission v. Intermediate Appellate Court [G.R. No. 73669, October 28, 1986, 145 SCRA 306].] In the instant case, however, petitioners' motion for extension of time was filed on September 9, 1987, more than a year after the expiration of the grace period on June 30, 1986. Hence, it is no longer within the coverage of the grace period. Considering the length of time from the expiration of the grace period to the promulgation of the decision of the Court of Appeals on August 25, 1987, petitioners cannot seek refuge in the ignorance of their counsel regarding said rule for their failure to file a motion for reconsideration within the reglementary period. Petitioners contend that the rule enunciated in the Habaluyas case should not be made to apply to the case at bar owing to the non-publication of the Habaluyas decision in the Official Gazette as of the time the subject decision of the Court of Appeals was promulgated. Contrary to petitioners' view, there is no law requiring the publication of Supreme Court decisions in the Official Gazette before they can be binding and as a condition to their becoming effective. It is the bounden duty of counsel as lawyer in active law practice to keep abreast of decisions of the Supreme Court particularly where issues have been clarified, consistently reiterated, and published in the advance reports of Supreme Court decisions (G. R. s) and in such publications as the Supreme Court Reports Annotated (SCRA) and law journals. This Court likewise finds that the Court of Appeals committed no grave abuse of discretion in affirming the trial court's decision holding petitioner liable under Article 2190 of the Civil Code, which provides that "the proprietor of a building or structure is responsible for the damage resulting from its total or partial collapse, if it should be due to the lack of necessary repairs. Nor was there error in rejecting petitioners argument that private respondents had the "last clear chance" to avoid the accident if only they heeded the. warning to vacate the tailoring shop and , therefore, petitioners prior negligence should be disregarded, since the doctrine of "last clear chance," which has been applied to vehicular accidents, is inapplicable to this case. WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant petition for lack of merit. Fernan (Chairman), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

ARTICLE 3. Ignorance of the law excuses no one from compliance therewith. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 138322 October 2, 2001

GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs. REDERICK A. RECIO, respondents. PANGANIBAN, J.: A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner. However, the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take judicial notice of foreign laws and judgment; hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence. The Case Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the 1 2 January 7, 1999 Decision and the March 24, 1999 Order of the Regional Trial Court of Cabanatuan City, Branch 28, in Civil Case No. 3026-AF. The assailed Decision disposed as follows: "WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A. Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved and both parties can 3 now remarry under existing and applicable laws to any and/or both parties." 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, 4 Rizal, on March 1, 1987. They lived together as husband and wife in Australia. On May 18, 5 1989, 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 6 Australian Citizenship" issued by the Australian government. Petitioner a Filipina and respondent were married on January 12, 1994 in Our Lady of Perpetual Help Church in 7 Cabanatuan City. In their application for a marriage license, respondent was declared as "single" 8 and "Filipino." 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 9 divided on May 16, 1996, in accordance with their Statutory Declarations secured in Australia.

On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage in the court a quo, on the ground of bigamy respondent allegedly had a prior subsisting marriage at the time he married her on January 12, 1994. She claimed that she learned of respondent's marriage to Editha Samson only in November, 1997. In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his 11 prior marriage and its subsequent dissolution. He contended that his first marriage to an 12 Australian citizen had been validly dissolved by a divorce decree obtained in Australian in 1989; thus, he was legally capacitated to marry petitioner in 1994. 1wphi1.nt On July 7, 1998 or about five years after the couple's wedding and while the suit for the declaration of nullity was pending respondent was able to secure a divorce decree from a family 13 court in Sydney, Australia because the "marriage ha[d] irretrievably broken down." Respondent prayed in his Answer that the Complained be dismissed on the ground that it stated 14 15 no cause of action. The Office of the Solicitor General agreed with respondent. The court 16 marked and admitted the documentary evidence of both parties. After they submitted their 17 respective memoranda, the case was submitted for resolution. Thereafter, the trial court rendered the assailed Decision and Order. Ruling of the Trial Court The trial court declared the marriage dissolved on the ground that the divorce issued in Australia was valid and recognized in the Philippines. It deemed the marriage ended, but not on the basis of any defect in an essential element of the marriage; that is, respondent's alleged lack of legal capacity to remarry. Rather, it based its Decision on the divorce decree obtained by respondent. The Australian divorce had ended the marriage; thus, there was no more martial union to nullify or annual. Hence, this Petition.
18

10

Issues Petitioner submits the following issues for our consideration: "I The trial court gravely erred in finding that the divorce decree obtained in Australia by the respondent ipso facto terminated his first marriage to Editha Samson thereby capacitating him to contract a second marriage with the petitioner. "2 The failure of the respondent, who is now a naturalized Australian, to present a certificate of legal capacity to marry constitutes absence of a substantial requisite voiding the petitioner' marriage to the respondent. "3 The trial court seriously erred in the application of Art. 26 of the Family Code in this case.

"4 The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of the Family Code as the applicable provisions in this case. "5 The trial court gravely erred in pronouncing that the divorce gravely erred in pronouncing that the divorce decree obtained by the respondent in Australia ipso facto capacitated the parties to remarry, without first securing a recognition of the judgment granting the divorce decree before 19 our courts." The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two pivotal ones: (1) whether the divorce between respondent and Editha Samson was proven, and (2) whether respondent was proven to be legally capacitated to marry petitioner. Because of our ruling on these two, there is no more necessity to take up the rest. The Court's Ruling The Petition is partly meritorious. First Issue: Proving the Divorce Between Respondent and Editha Samson Petitioner assails the trial court's recognition of the divorce between respondent and Editha 20 Samson. Citing Adong v. Cheong Seng Gee, petitioner argues that the divorce decree, like any other foreign judgment, may be given recognition in this jurisdiction only upon proof of the existence of (1) the foreign law allowing absolute divorce and (2) the alleged divorce decree itself. She adds that respondent miserably failed to establish these elements. Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages solemnized abroad are governed by the law of the place where they were celebrated (the lex loci celebrationist). In effect, the Code requires the presentation of the foreign law to show the conformity of the marriage in question to the legal requirements of the place where the marriage was performed. At the outset, we lay the following basic legal principles as the take-off points for our discussion. 21 Philippine law does not provide for absolute divorce; hence, our courts cannot grant it. A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad, because 22 23 24 of Articles 15 and 17 of the Civil Code. In mixed marriages involving a Filipino and a 25 foreigner, Article 26 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 26 remarry." A divorce obtained abroad by a couple, who are both aliens, may be recognized in the 27 Philippines, provided it is consistent with their respective national laws. 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 28 recognized in the Philippines, provided they are valid according to their national law." Therefore, before a foreign divorce decree can be recognized by our courts, the party pleading it must prove 29 the divorce as a fact and demonstrate its conformity to the foreign law allowing it. Presentation solely of the divorce decree is insufficient.

Divorce as a Question of Fact Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply with the registration requirements under Articles 11, 13 and 52 of the Family Code. These articles read as follows: "ART. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following: xxx xxx xxx

"(5) If previously married, how, when and where the previous marriage was dissolved or annulled; xxx xxx xxx

"ART. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth of baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of annulment or declaration of nullity of his or her previous marriage. x x x. "ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect their persons." Respondent, on the other hand, argues that the Australian divorce decree is a public document a written official act of an Australian family court. Therefore, it requires no further proof of its authenticity and due execution. Respondent is getting ahead of himself. Before a foreign judgment is given presumptive 30 evidentiary value, the document must first be presented and admitted in evidence. A divorce obtained abroad is proven by the divorce decree itself. Indeed the best evidence of a judgment is 31 the judgment itself. The decree purports to be a written act or record of an act of an officially 32 body or tribunal of a foreign country. 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 33 thereof attested by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in 34 which the record is kept and (b) authenticated by the seal of his office. The divorce decree between respondent and Editha Samson appears to be an authentic one 35 issued by an Australian family court. However, appearance is not sufficient; compliance with the aforemetioned rules on evidence must be demonstrated. Fortunately for respondent's cause, when the divorce decree of May 18, 1989 was submitted in evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had not 36 been registered in the Local Civil Registry of Cabanatuan City. The trial court ruled that it was 37 admissible, subject to petitioner's qualification. Hence, it was admitted in evidence and accorded weight by the judge. Indeed, petitioner's failure to object properly rendered the divorce 38 decree admissible as a written act of the Family Court of Sydney, Australia.

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 39 citizenship in 1992. Naturalization is the legal act of adopting an alien and clothing him with the 40 political and civil rights belonging to a citizen. 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 41 or thing necessary in the prosecution or defense of an action." 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 42 introduce new matters. 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. Like any other facts, they must be alleged and proved. Australian marital laws are not among those 44 matters that judges are supposed to know by reason of their judicial function. The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative. Second Issue: Respondent's Legal Capacity to Remarry Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legally incapacitated to marry her in 1994. Hence, she concludes that their marriage was void ab initio. Respondent replies that the Australian divorce decree, which was validly admitted in evidence, adequately established his legal capacity to marry under Australian law. Respondent's contention is untenable. In its strict legal sense, divorce means the legal dissolution of a lawful union for a cause arising after marriage. But divorces are of different types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and (2) limited divorce or a mensa et thoro. The first kind terminates the marriage, while the second suspends it and leaves the bond in 45 full force. 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 46 is effected.
43

Even after the divorce becomes absolute, the court may under some foreign statutes and practices, still restrict remarriage. Under some other jurisdictions, remarriage may be limited by statute; thus, the guilty party in a divorce which was granted on the ground of adultery may be prohibited from remarrying again. The court may allow a remarriage only after proof of good 47 behavior. 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 48 other party has died) commits the offence of bigamy." This quotation bolsters our contention that the divorce obtained by respondent may have been restricted. It did not absolutely establish his legal capacity to remarry according to his national law. Hence, we find no basis for the ruling of the trial court, which erroneously assumed that the Australian divorce ipso facto restored respondent's capacity to remarry despite the paucity of evidence on this matter. We also reject the claim of respondent that the divorce decree raises a disputable presumption or 49 presumptive evidence as to his civil status based on Section 48, Rule 39 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 50 part of the alien applicant for a marriage license. As it is, however, there is absolutely no evidence that proves respondent's legal capacity to marry petitioner. A review of the records before this Court shows that only the following exhibits were 51 presented before the lower court: (1) for petitioner: (a) Exhibit "A" Complaint; (b) Exhibit "B" Certificate of Marriage Between Rederick A. Recto (Filipino-Australian) and Grace J. Garcia 52 (Filipino) on January 12, 1994 in Cabanatuan City, Nueva Ecija; (c) Exhibit "C" Certificate of Marriage Between Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1, 53 1987 in Malabon, Metro Manila; (d) Exhibit "D" Office of the City Registrar of Cabanatuan City Certification that no information of annulment between Rederick A. Recto and Editha D. Samson 54 was in its records; and (e) Exhibit "E" Certificate of Australian Citizenship of Rederick A. 55 56 Recto; (2) for respondent: (Exhibit "1" Amended Answer; (b) Exhibit "S" Family Law Act 57 1975 Decree Nisi of Dissolution of Marriage in the Family Court of Australia; (c) Exhibit "3" 58 Certificate of Australian Citizenship of Rederick A. Recto; (d) Exhibit "4" Decree Nisi of 59 Dissolution of Marriage in the Family Court of Australia Certificate; and Exhibit "5" Statutory Declaration of the Legal Separation Between Rederick A. Recto and Grace J. Garcia Recio since 60 October 22, 1995. Based on the above records, we cannot conclude that respondent, who was then a naturalized Australian citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree with petitioner's contention that the court a quo erred in finding that the divorce decree ipso facto clothed respondent with the legal capacity to remarry without requiring him to adduce sufficient

evidence to show the Australian personal law governing his status; or at the very least, to prove his legal capacity to contract the second marriage. Neither can we grant petitioner's prayer to declare her marriage to respondent null and void on the ground of bigamy. After all, it may turn out that under Australian law, he was really capacitated to marry petitioner as a direct result of the divorce decree. Hence, we believe that the most judicious course is to remand this case to the trial court to receive evidence, if any, which show petitioner's legal capacity to marry petitioner. Failing in that, then the court a quo may declare a nullity of the parties' marriage on the ground of bigamy, there being already in evidence two existing marriage 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 respondent's 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, Puno, Vitug, and Sandoval-Gutierrez, JJ., concur. Footnotes
1

Penned by Judge Feliciano V. Buenaventura; rollo, pp. 7-9. Rollo, p. 10. Ibid, p. 9. Rollo, p. 37. Ibid., p. 47. Id., p. 44. Id., p. 36. Annex "I"; temporary rollo, p. 9.

The couple secured an Australian "Statutory Declaration" of their legal separation and division of conjugal assets. See Annexes "3" and "4" of Respondent's Comment; rollo, p. 48.
10

Id., pp. 33-35. Id., p. 39. Amended Answer, p. 2; rollo, p. 39. Id., pp. 77-78. Id., p. 43.

11

12

13

14

15

Rollo, pp. 48-51. TSN, December 16, 1998, pp. 1-8; records, pp. 172-179. RTC Order of December 16, 1998; ibid., p. 203.

16

17

18

The case was deemed submitted for decision on January 11, 2000, upon this Court's receipt of the Memorandum for petitioner, signed by Atty. Olivia Velasco-Jacoba. The Memorandum for respondent, signed by Atty. Gloria V. Gomez of Gomez and Associates, had been filed on December 10, 1999.
19

Petitioner's Memorandum, pp. 8-9; rollo, pp. 242-243. 43 Phil. 43, 49, March 3, 1922.

20

21

Ruben F. Balane, "Family Courts and Significant Jurisprudence in Family Law," Journal of the st nd Integrated Bar of the Philippines, 1 & 2 Quarters, 2001, Vol. XXVII, No. 1, p. 25.
22

"ART. 15. 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."
23

"ART. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. xxx xxx xxx

"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."
25

Tenchaves v. Escano 15 SCRA 355, 362, November 29, 1965; Barretto Gonzalez v. Gonzales, 58 Phil. 67, 71-72, March 7, 1933. "Art. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5), and (6), 36, 37, and 38. (71a). "Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law." (As amended by EO 227, prom. July 27, 1987).
26

Cf. Van Dorn v. Romillo Jr., 139 SCRA 139, 143-144, October 8, 1985; and Pilapil v. IbaySomera, 174 SCRA 653, 663, June 30, 1989.1wphi1.nt
27

Van Dorn v. Romillo Jr., supra. Ibid., p. 143.

28

29

For a detailed discussion of Van Dorn, see Salonga, Private International Law, 1995 ed. pp. 295-300. See also Jose C. Vitug, Compendium of Civil Law and Jurisprudence, 1993 ed., p. 16;

30

"SEC. 19. Classes of documents. For the purpose of their presentation in evidence, documents are either public or private. "Public documents are: "(a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether in the Philippines, or of a foreign country. xxx
31

xxx

x x x."

Burr W. Jones, Commentaries on the Law of Evidence in Civil Cases, Vol. IV, 1926 ed., p. 3511; 3, Rule 130 of the Rules on Evidence provides that "when the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself."
32

"SEC. 19. Classes of documents. For the purpose of their presentation in evidence, documents are either public or private. Public documents are: "(a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether in the Philippines, or of a foreign country. xxx
33

xxx

x x x."

"Sec. 25. What attestation of copy must state. Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court."
34

"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, viceconsul, 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." See also Asiavest Ltd. v. Court of Appeals, 296 SCRA 539, 550-551, September 25, 1998; Pacific Asia Overseas Shipping Corp. v. National Labor Relations Commission , 161 SCRA 122, 133-134, May 6, 1988.
35

The transcript of stenographic notes states that the original copies of the divorce decrees were presented in court (TSN, December 16, 1998, p. 5; records, p. 176), but only photocopies of the same documents were attached to the records (Records, Index of Exhibit, p. 1.).
36

TSN, December 15, 1998, p. 7; records, p. 178. TSN, December 16, 1998, p. 7; records, p. 178.

37

38

People v. Yatco, 97 Phil. 941, 945, November 28, 1955; Marella v. Reyes, 12 Phil. 1, 3, November 10, 1908; People v. Diaz, 271 SCRA 504, 516, April 18, 1997; De la Torre v. Court of

Appeals, 294 SCRA 196, 203-204, August 14, 1998, Maunlad Savings & Loan Asso., Inc. v. Court of Appeals, GR No. 114942, November 27, 2000, pp. 8-9.
39

Art. 15, Civil Code.

40

Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 ed., p. 566.
41

Ricardo J. Francisco, Evidence: Rules of Court in the Philippines, second edition, p. 382. Ibid., p. 384. Wildvalley Shipping Co., Ltd. v. Court of Appeals, GR No. 119602, October 56, 2000, p. 7. Francisco, p. 29, citing De los Angeles v. Cabahug, 106 839, December 29, 1959. 274 CJS, 15-17, 1. Ibid., p. 611-613, 161. 27A CJS, 625, 162. Rollo, p. 36.

42

43

44

45

46

47

48

49

"SEC. 48. Effect of foreign judgments or final orders. The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows: xxx xxx xxx

"(b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. "In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact."
50

In passing, we note that the absence of the said certificate is merely an irregularity in complying with the formal requirement for procuring a marriage license. Under Article 4 of the Family Code, an irregularity will not affect the validity of a marriage celebrated on the basis of a marriage license issued without that certificate. (Vitug, Compendium, pp. 120-126); Sempio-Diy, Handbook on the Family Code of the Philippines, 197 reprint, p. 17; Rufus Rodriguez, The Family Code of the Philippines Annotated, 1990 ed., p. 42; Melencio Sta. Maria Jr., Persons and Family Relations Law, 1999 ed., p. 146.).
51

Records, pp. 1-3. Ibid., p. 4. Id., p. 5. Id., p. 180.

52

53

54

55

Id., pp. 170-171. Id., pp. 84-89. Id., pp. 181-182. Id., pp. 40-41. Id., pp. 183. Id., pp. 184-187 Republic of the Philippines SUPREME COURT FIRST DIVISION

26

57

58

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G.R. No. 154380 October 5, 2005 REPUBLIC OF THE PHILIPPINES, Petitioner, vs. CIPRIANO ORBECIDO III, Respondent. DECISION QUISUMBING, J.: Given a valid marriage between two Filipino citizens, where one party is later naturalized as a foreign citizen and obtains a valid divorce decree capacitating him or her to remarry, can the Filipino spouse likewise remarry under Philippine law? Before us is a case of first impression that behooves the Court to make a definite ruling on this apparently novel question, presented as a pure question of law. In this petition for review, the Solicitor General assails the Decision dated May 15, 2002, of the 2 Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution dated July 4, 2002 denying the motion for reconsideration. The court a quo had declared that herein respondent Cipriano Orbecido III is capacitated to remarry. The fallo of the impugned Decision reads: WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family Code and by reason of the divorce decree obtained against him by his American wife, the petitioner is given the capacity to remarry under the Philippine Law. IT IS SO ORDERED.
3 1

The factual antecedents, as narrated by the trial court, are as follows. On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of Christ in the Philippines in Lam-an, Ozamis City. Their marriage was blessed with a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido. In 1986, Ciprianos wife left for the United States bringing along their son Kristoffer. A few years later, Cipriano discovered that his wife had been naturalized as an American citizen.

Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then married a certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A. Walnut Grove Avenue, San Gabriel, California. Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2 of Article 26 of the Family Code. No opposition was filed. Finding merit in the petition, the court granted the same. The Republic, herein petitioner, through the Office of the Solicitor General (OSG), sought reconsideration but it was denied. In this petition, the OSG raises a pure question of law: WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY 4 CODE The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the instant case because it only applies to a valid mixed marriage; that is, a marriage celebrated between a Filipino citizen and an alien. The proper remedy, according to the OSG, is to file a 5 petition for annulment or for legal separation. Furthermore, the OSG argues there is no law that governs respondents situation. The OSG posits that this is a matter of legislation and not of 6 judicial determination. For his part, respondent admits that Article 26 is not directly applicable to his case but insists that when his naturalized alien wife obtained a divorce decree which capacitated her to remarry, he is 7 likewise capacitated by operation of law pursuant to Section 12, Article II of the Constitution. At the outset, we note that the petition for authority to remarry filed before the trial court actually constituted a petition for declaratory relief. In this connection, Section 1, Rule 63 of the Rules of Court provides: RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES Section 1. Who may file petitionAny 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 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 requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) that the party seeking the relief has a legal interest in the controversy; and (4) that the issue is ripe for judicial 8 determination. This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two Filipino citizens where one later acquired alien citizenship, obtained a divorce decree, and remarried while in the U.S.A. The interests of the parties are also adverse, as petitioner representing the State asserts its duty to protect the institution of marriage while respondent, a private citizen, insists on a declaration of his capacity to remarry. Respondent, praying for relief, has legal interest in the controversy. The issue raised is also ripe for judicial determination inasmuch as when respondent remarries, litigation ensues and puts into question the validity of

his second marriage. Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code apply to the case of respondent? Necessarily, we must dwell on how this provision had come about in the first place, and what was the intent of the legislators in its enactment? Brief Historical Background On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise known as the "Family Code," which took effect on August 3, 1988. Article 26 thereof states: All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35, 37, and 38. On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was added to Article 26. As so amended, it now provides: ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law . (Emphasis supplied) On its face, the foregoing provision does not appear to govern the situation presented by the case at hand. It seems to apply only to cases where at the time of the celebration of the marriage, the parties are a Filipino citizen and a foreigner. The instant case is one where at the time the marriage was solemnized, the parties were two Filipino citizens, but later on, the wife was naturalized as an American citizen and subsequently obtained a divorce granting her capacity to remarry, and indeed she remarried an American citizen while residing in the U.S.A. Noteworthy, in the Report of the Public Hearings on the Family Code, the Catholic Bishops Conference of the Philippines (CBCP) registered the following objections to Paragraph 2 of Article 26: 1. The rule is discriminatory. It discriminates against those whose spouses are Filipinos who divorce them abroad. These spouses who are divorced will not be able to re-marry, while the spouses of foreigners who validly divorce them abroad can. 2. This is the beginning of the recognition of the validity of divorce even for Filipino citizens. For those whose foreign spouses validly divorce them abroad will also be considered to be validly divorced here and can re-marry. We propose that this be deleted and made into law only after more widespread consultation. (Emphasis supplied.) Legislative Intent Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to avoid the absurd situation where the Filipino spouse remains married to the alien
9

spouse who, after obtaining a divorce, is no longer married to the Filipino spouse. Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, 10 Jr. The Van Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held therein that a divorce decree validly obtained by the alien spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated to remarry under Philippine law. Does the same principle apply to a case where at the time of the celebration of the marriage, the parties were Filipino citizens, but later on, one of them obtains a foreign citizenship by naturalization? The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals. In Quita, the parties were, as in this case, Filipino citizens when they got married. The wife became a naturalized American citizen in 1954 and obtained a divorce in the same year. The Court therein hinted, by way of obiter dictum, that a Filipino divorced by his naturalized foreign spouse is no longer married under Philippine law and can thus remarry. Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. Where the interpretation of a statute according to its exact and literal import would lead to mischievous results or contravene the clear purpose of the legislature, it should be construed according to its spirit and reason, disregarding as far as necessary the letter of the law. A statute may therefore be extended to cases not within the literal meaning of its terms, so long as they come within its spirit 12 or intent. If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of Article 26. In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows: 1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and 2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry. The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry. In this case, when Ciprianos wife was naturalized as an American citizen, there was still a valid marriage that has been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the "divorced" Filipino spouse, should be allowed to remarry. We are also unable to sustain the OSGs theory that the proper remedy of the Filipino spouse is
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to file either a petition for annulment or a petition for legal separation. Annulment would be a long and tedious process, and in this particular case, not even feasible, considering that the marriage of the parties appears to have all the badges of validity. On the other hand, legal separation would not be a sufficient remedy for it would not sever the marriage tie; hence, the legally separated Filipino spouse would still remain married to the naturalized alien spouse. However, we note that the records are bereft of competent evidence duly submitted by respondent concerning the divorce decree and the naturalization of respondents wife. It is settled rule that one who alleges a fact has the burden of proving it and mere allegation is not 13 evidence. Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was naturalized as an American citizen. Likewise, before a foreign divorce decree can be recognized by our own courts, the party pleading it must prove the divorce as a fact and demonstrate its 14 conformity to the foreign law allowing it. Such foreign law must also be proved as our courts cannot take judicial notice of foreign laws. Like any other fact, such laws must be alleged and 15 proved. Furthermore, respondent must also show that the divorce decree allows his former wife to remarry as specifically required in Article 26. Otherwise, there would be no evidence sufficient to declare that he is capacitated to enter into another marriage. Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has been divorced by a spouse who had acquired foreign citizenship and remarried, also to remarry. However, considering that in the present petition there is no sufficient evidence submitted and on record, we are unable to declare, based on respondents bare allegations that his wife, who was naturalized as an American citizen, had obtained a divorce decree and had remarried an American, that respondent is now capacitated to remarry. Such declaration could only be made properly upon respondents submission of the aforecited evidence in his favo r. ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE. No pronouncement as to costs. SO ORDERED. LEONARDO A. QUISUMBING Associate Justice WE CONCUR: HILARIO G. DAVIDE, JR. Chief Justice Chairman CONSUELO YNARES-SANTIAGO, ANTONIO T. CARPIO Associate Justice Associate Justice

ADOLFO S. AZCUNA Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. HILARIO G. DAVIDE, JR. Chief Justice

Footnotes
1

Rollo, pp. 20-22. Id. at 27-29. Id. at 21-22. Id. at 105. Id. at 106-110. Id. at 110.

Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.
8

Office of the Ombudsman v. Ibay, G.R. No. 137538, 3 September 2001, 364 SCRA 281, 286, citing Galarosa v. Valencia, G.R. No. 109455, 11 November 1993, 227 SCRA 729, 737.
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Held on January 27 and 28, 1988 and February 3, 1988. No. L-68470, 8 October 1985, 139 SCRA 139. G.R. No. 124862, 22 December 1998, 300 SCRA 406. Lopez & Sons, Inc. v. Court of Tax Appeals, No. L-9274, 1 February 1957, 100 Phil. 850, 855. Cortes v. Court of Appeals, G.R. No. 121772, 13 January 2003, 395 SCRA 33, 38. Garcia v. Recio, G.R. No. 138322, 2 October 2001, 366 SCRA 437, 447. Id. at 451.

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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. L-50974-75 May 31, 1989 JUAN CASTRO and FELICIANA CASTRO, petitioners, vs. HON. COURT OF APPEALS, CIPRIANO NAVAL and BENITA C. NAVAL, respondents. Luis R. Reyes for petitioners. Marcelino U. Aganon for private respondents.

GUTIERREZ, JR., J.: This petition for review on certiorari seeks the reversal of the decision of the Court of Appeals in CA-G.R. Nos. 47262 and 47263-R, which affirmed the decision of the then Court of First Instance of Tarlac in Civil Case Nos. 3762-3763. The dispositive portion of the trial court's decision reads as follows: WHEREFORE, judgment is hereby rendered in favor of defendants and against plaintiffs in the above-entitled cases: 1) Declaring defendant Benita Castro Naval a duly acknowledged and recognized illegitimate child of Eustaquio Castro; 2) Awarding the sum of P2,000.00 to defendants by way of attorney's fee and expenses of litigation (one-half to be paid by plaintiffs, jointly and severally, in Civil Case No. 3762 and onehalf by plaintiff in Civil Case No. 3763); and 3) Pending the partition or distribution of the properties involved herein in appropriate proceedings or by mutual agreement, and so as to preserve the status quo, the writ of preliminary injunction of February 10, 1967 shall continue to remain in full force and effect. With costs against plaintiffs, one-half chargeable to plaintiffs in Civil Case No. 3762 and the other half to plaintiff in Civil Case No. 3763. (Record on Appeal, pp. 137-138) Petitioners Juan Castro and Feliciana Castro are the brother and sister of the late Eustaquio Castro while respondent Benita Castro Naval is the only child of Eustaquio. Respondent Cipriano Naval is the husband of Benita Castro. The Court of Appeals correctly summarized the facts of the case as follows: In Civil Case No. 3762 entitled Juan Castro and Feliciana Castro v. Benita Castro, the plaintiffs filed an action for partition of properties against the defendant alleging, among other things that they are the forced heirs of Pedro Castro who died in Mayantoc, Tarlac on May 27, 1923 (p. 6,

Record on Appeal). In Civil Case No. 3763 plaintiff Marcelina Bautista also filed an action for partition of properties against defendant Benita Castro Naval alleging, among other things, that they are also compulsory heirs of Eustaquio Castro who died in Mayantoc, Tarlac on August 24, 1961 and that they are entitled to the partition of the properties of said deceased (p. 32, Record on Appeal). The defendants in their amended answer in both cases allege that Benita Castro Naval is the only child of the deceased Eustaquio and that said Eustaquio Castro is the son of Pedro Castro, therefore, the complaint for partition has no cause of action (p. 25, Record on Appeal). With leave of Court, plaintiffs filed their amended complaints whereby they converted the original action for partition into an action for quieting of title. Defendant's husband Cipriano Naval was forthwith impleaded as party-defendant (p. 32, Record on Appeal). In the meantime, defendant Benita Naval filed a petition for appointment as receiver and for preliminary injunction in Civil Case No. 3762. The trial court, however, denied said petition for appointment of receiver, but granted the petition for writ of preliminary injunction and also adjudged Marcelina Bautista who is the plaintiff in Civil Case No. 3762 guilty of contempt and ordering her to pay a fine of P100. 00 (p. 97, Record on Appeal). Considering that evidence in these incidents of appointing a receiver and preliminary injunction as well as the motion for contempt were related to the merits of the case, the parties stipulated that evidence therein be considered as evidence in the trial on the merits. During the pre-trial the parties agreed that the main issue to be resolved in this case is as to whether or not defendant Benita Castro Naval is the acknowledged natural child of Eustaquio Castro. In view of this stipulation, defendant Benita Naval was allowed to introduce evidence to show that she was indeed the acknowledged natural child of Eustaquio Castro. The evidence on record shows that Juan Castro and Feliciana Castro, plaintiffs in Civil Case No. 3762 and Eustaquio Castro who was already dead were the children of the deceased spouses Pedro Castro and Cornelia Santiago. Marcelina Bautista, one of the plaintiffs in Civil Case No. 3763, is the surviving spouse of the deceased Eustaquio Castro. Eustaquio Castro died on August 23, 1961 and Pricola Maregmen died on September 11, 1924. It appears that defendant Benita Castro Naval, a child of Eustaquio Castro and Pricola Maregmen, was born on March 27, 1919 in San Bartolome, Tarlac (Exhibit A). Eustaquio Castro, who caused the registration of said birth gave the date indicated in the civil registry that he was the father. Benita Castro was later baptized in the Roman Catholic Church of Camiling, Tarlac, wherein the baptismal certificate appeared that her parents are deceased Eustaquio Castro and Pricola Maregmen (Exhibit C). When Eustaquio Castro died, pictures were taken wherein the immediate members of the family in mourning were present, among whom was Benita Castro Naval (Exhibits D and D-1). On this score, the plaintiffs in their complaint in Civil Case No. 3762 admitted that defendant Benita C. Naval is the forced heir of Eustaquio Castro and a compulsory heir of Eustaquio Castro in Civil Case No. 3763. The evidence further shows that Pricola Maregmen, the natural mother of Benita C. Naval who was a resident of Mayantoc, Tarlac, was wedded to Felix de Maya of Anoling Canaling, Tarlac against her wishes on May 23, 1913. While the celebration of the wedding in Anong, Camiling, Tarlac was going on, the guests soon found out that Pricola Maregmen surreptitiously left the party and went to the house of her first cousin Bernarda Pagarigan at Barrio Malacampa, also in Anoling Camiling, Tarlac, and there she cried that she did not want to get married to Felix de Maya. That evening Pricola proceeded to Barrio San Bartolome, Mayantoc, Tarlac, where she

united with her real sweetheart, Eustaquio Castro, the father of Benita Castro Naval. Antonio Maregmen, the brother'. of Pricola Maregmen who was then in the wedding party learned of the disappearance of his sister. He finally found her living with Eustaquio Castro. A few days later Eustaquio Castro accompanied by two persons went to the parents of Pricola Maregmen at Mayantoc, Tarlac and informed them that Pricola was already living with him as husband and wife. Pricola's parents merely submitted to their daughter's wishes, so Eustaquio Castro and Pricola Maregmen lived as husband and wife until the death of Pricola on September 11, 1924. There is no dispute that Eustaquio Castro at the time he lived with Pricola Maregmen, was a widower, and was, therefore, free to marry Pricola. As a result of their cohabitation Benita Castro Naval, herein defendant, was born on March 27, 1919. After the death of her mother, when she was only five years old, she continued to live with her father Eustaquio Castro until his death on August 22, 1961 (Exhibit 11). Moreover, when Benita Castro Naval got married to Cipriano Naval, it was Eustaquio Castro who gave her away in marriage. Even after Benita's marriage, she was taken care of by her father. (Rollo, pp. 11-13). The trial court ruled that respondent Benita Castro Naval is the acknowledged and recognized child of Eustaquio Castro and is, therefore, entitled to participate in the partition of the properties left by him. These properties are the subject of the civil cases. As stated earlier, the Court of Appeals affirmed the trial court's decision. The main issue raised in this petition is whether or not respondent Benita Castro Naval is the acknowledged and recognized illegitimate child of Eustaquio Castro. The Court of Appeals justified its pronouncement that the private respondent is an acknowledged and recognized child of Eustaquio Castro in the following manner: xxx xxx xxx . . . The recognition of Benita Castro as a natural child of Eustaquio Castro appears in the records of birth and partition. Recognition shall be made in the record of birth, a will, a statement before a court of record, or any authentic writing (Art. 278, Civil Code). It was a voluntary recognition already established which did not need any judicial pronouncement (Gut, 68 Phil. 385; Root v. Root, (CA), 71 O.G. 3061). In Javelona v. Onteclaro, 74 Phil. 393, the Supreme Court clarified the distinction between voluntary recognition and compulsory recognition. In the first place, a voluntary recognition is made in a public document, whereas in the indubitable writing under Article 135 is a private document. (Manresa, Vol. 1, p. 579). The father would ordinarily be more careful about what he said in a public document than in a private writing, so that even an incidental mention of the child as his in a public document deserves full faith and credit. In the second place, in an action on Article 131 (voluntary recognition) the natural child merely asks for a share in the inheritance in virtue of his having been acknowledged as such, and is not trying to compel the father or his heirs to make the acknowledgment, whereas the action based on Article 135 is to compel the father or his heirs to recognize the child. In the former case, acknowledgment has been formally and legally accomplished because the public character of the document makes judicial pronouncement unnecessary, while in the latter case, recognition is yet to be ordered by the courts because a private writing, lacking the stronger guaranty and higher authenticity of a public document is not self- executory. A judgment in favor of the status of a natural child according to Art. 135 must therefore be based on an express recognition so found and declared by the court after hearing. At this juncture, it is to be noted that an action based on voluntary acknowledgment may be brought after the death of the father, but. not an action to compel acknowledgment, as a general rule, (Art. 137, Civil Code) which shows the liberality of the law as to voluntary recognition, and its strictness toward compulsory acknowledgment.

While it is true that Pricola Maregmen, Benita's mother was married to Naval (sic), it is the rule, however, that in case the recognition is made by only one of the parents, it will be presumed that the child is natural if the parents recognizing it had the legal capacity to contract marriage at the time of the conception (Art. 277, Civil Code; Borres and Barza v. Municipality of Panay, 42 Phil. 643; Capistrano v. Gabino, 8 Phil. 135). The presumption arises from the act of recognition. What is more is that plaintiffs in their amended complaint admitted that Benita Castro was the compulsory heir of Eustaquio Castro. They cannot now contradict their own allegations (Cunanan v. Amparo, 80 Phil. 232). (Rollo, pp. 14-15) The Court of Appeals has correctly stated the principles but the petitioners contend that it erred in applying these principles to the facts of this case. The law which now governs paternity and filiation is Title VI of the Family Code of the Philippines, Executive Order No. 209, July 6,1987 as amended by Executive Order No. 227, July 17, 1987. We have to examine the earlier provisions, however, because the Family Code provides in its Article 256 that: This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. (Emphasis supplied) There is no question that the private respondent is an illegitimate child of Eustaquio Castro. Her father Eustaquio was a widower when Pricola Maregmen, her mother, went to live with him. The two could not validly enter into a marriage because when Pricola fled from her own wedding party on May 23, 1913, the wedding rites to Felix de Maya had already been solemnized. In other words, the marriage was celebrated although it could not be consummated because the bride hurriedly ran away to join the man she really loved. Under the Civil Code, whether "new" or "old", illegitimate children or those who are conceived and born out of wedlock were generally classified into two groups: (1) Natural, whether actual or by fiction, were those born outside of lawful wedlock of parents who, at the time of conception of the child, were not disqualified by any impediment to marry each other. (Article 119, old Civil Code; Article 269, new Civil Code) and (2) Spurious, whether incestuous, adulterous or illicit, were those born of parents who, at the time of conception, were disqualified to marry each other on account of certain legal impediments. Since Eustaquio Castro was a widower when Benita was conceived, Benita is Ms natural child. (See Borres and Barza v. Municipality of Panay, 42 Phil. 643,647 [1922]). However, from the viewpoint of the mother who had a subsisting marriage to Felix de Maya, Benita was her spurious child. Under the Civil Code, for an illegitimate child other than natural to inherit, she must first be recognized voluntarily or by court action. (Berciles v. Government Service Insurance System, 128 SCRA 53 [1984]; Divinagracia v. Rovira, 72 SCRA 307 [1976]; Vda. de Clemena v. Clemena 24 SCRA 720 [1968]; Noble v. Noble, 18 SCRA 1104 [1966]; Republic v. Workmen's Compensation Commission, 13 SCRA 272 [1965]; Paulino v. Paulino 3 SCRA 730 [1961]; Barles, et al. v. Ponce Enrile, 109 Phil. 522 [1960]; and Reyes v. Court of Appeals, 135 SCRA 439 [1985]). This arises from the legal principle that an unrecognized spurious child like a natural child has no rights from her parents or to their estate because her rights spring not from the filiation or blood relationship but from the child's acknowledgment by the parent. (Alabat v. Vda. de Alabat, 21 SCRA 1479 [1967]; Mise v. Rodriguez, 95 Phil. 396 [1954]; Magallanes, et al.v. Court of Appeals, et al., 95 Phil. 795 [1954]; Canales v. Arrogante, et al., 91 Phil. 6 [1952]; Malonda v. Malonda, 61 Phil. 149 [1948]; Buenaventura v. Urbano, et al., 5 Phil. 1 [1905]; and Reyes v. Court of Appeals, supra). In other words, the rights of an illegitimate child arose not because she was the true or real child of

her parents but because under the law, she had been recognized or acknowledged as such a child. This brings us to the question whether or not the private respondent is an acknowledged and recognized illegitimate child of Eustaquio Castro. Under the Civil Code, there are two kinds of acknowledgment voluntary and compulsory. The provisions on acknowledgement are applied to natural as well as spurious children (Clemena v. Clemena supra; Reyes v. Court of Appeals, supra). Article 131 of the old Civil Code provides for voluntary acknowledgment by the father or mother, while Article 135 and Article 136 of the same Code provide for the compulsory acknowledgment by the father and mother respectively. Article 131 of the old Civil Code states that "The acknowledgment of a natural child must be made in the record of birth, in a will or in some other public document." In these cases, the appellate court ruled that the private respondent was voluntarily recognized by her father, Eustaquio Castro through the record of birth, hence there was no need for any judicial pronouncement. The record of birth referred to by the appellate court is actually the birth certificate of the private respondent. It appears in the certificate that Eustaquio Castro is the respondent's father. The petitioners take exception to the respondent court's ruling on voluntary recognition. Strictly speaking, a birth certificate to be sufficient for purposes of recognizing a child must be signed by the father and mother jointly and if the father refuses, by the mother alone otherwise she may be penalized. (Section 5, Article 3753; Madridejo v. de Leon, 55 Phil. 1 [1930]). What is signed is a loose form whose contents are later transferred by a municipal employee to the local registry book of births which is preserved. An examination of Exhibition F, Birth Certificate of Benita Castro, Folder of Exhibits, p. 112, shows that this "birth certificate" was in turn copied on October 17, 1961 from Book page No. 28, and Registry No. 47 of the book bound records where "Eustaquio Castro" appears under the column "Remarks." This is no question that Eustaquio himself reported the birth of his daughter but this record is not determinative of whether or not he also signed the easily lost looseleaf form of the certificate from where the entry in book bound or logbook record was taken in March, 1919. The ruling in Roces v. Local Civil Registrar of Manila (102 Phil. 1050 [1958]) and Berciles v. Government Service Insurance System (128 SCRA 53 [1984]) that if the father did not sign in the birth certificate, the placing of his name by the mother, doctor, registrar, or other person is incompetent evidence of paternity does not apply to this case because it was Eustaquio himself who went to the municipal building and gave all the data about his daughter's birth. In Berciles we find no participation whatsoever in the registration by Judge Pascual Berciles, the alleged father. We likewise see no application of the statement in Madridejo v. de Leon (supra), that the father, apart from furnishing the necessary data must also sign the certificate itself In that case, Pedro Madridejo, the father was still alive when the 1930 case was brought to court. Pedro himself testified that Melecio Madridejo was conceived and born to him, a bachelor, and Flaviana Perez, a widow. The two were validly maried when Flaviana was about to die. If the situation of Benita Castro Naval were similar, there would be no need to even discuss whether or not the father signed the birth certificate. Under the present law, the subsequent wedding of a man and woman whose child was conceived when there were no legal impediments to a valid marriage gives that child the lights of a legitimate off-spring. The situation is different in the present case.

We apply the more liberal provisions of the new Family Code considering the facts and equities of this case. First, Benita Castro Naval is unquestionably the daughter of the late Eustaquio Castro who was qualified to legally marry when she was conceived and born. From her birth on March 27, 1919 until the father's death on August 22, 1961 or for 42 years, Benita lived with her father and enjoyed the love and care that a parent bestows on an only child. The private respondents, themselves, admitted in their complaint in Civil Case No. 3762 that Benita is a forced heir of Eustaquio Castro. Second, the rule on separating the legitimate from the illegitimate family is of no special relevance here because Benita and her mother Pricola Maregmen were the only immediate family of Eustaquio. There are no legitimate children born of a legitimate wife contesting the inheritance of Benita. Third, it was Eustaquio himself who had the birth of Benita reported and registered. There is no indication in the records that Eustaquio should have known in 1919 that apart from reporting the birth of a child, he should also have signed the certificate and seen to it that it was preserved for 60 years. Or that he should have taken all legal steps including judicial action to establish her status as his recognized natural child during the reglementary period to do so. Fourth, it was Eustaquio who gave away Benita during her wedding to Cipriano Naval. The couple continued to live with the father even after the wedding and until the latter's death. Fifth, the certificate of baptism and the picture of the Castro family during the wake for Eustaquio may not be sufficient proof of recognition under the Civil Code (Reyes v. Court of Appeals, supra; People v. Villeza. 127 SCRA 349 [1984]; Cid v. Burnaman, 24 SCRA 434 [1968]; Capistrano, et al. v. Gabino, 8 Phil. 135 [1907]) but they add to the equities of this case favoring the petitioner. To remove any possible doubts about the correctness of the findings and conclusions of the trial court and the Court of Appeals, we, therefore, apply the provision of the Family Code which states that it shall have retroactive effect since the respondents have no clear vested rights in their favor. Under the Code's Title VI on Paternity and Filiation there are only two classes of children legitimate and illegitimate. The fine distinctions among various types of illegitimate children have been eliminated. Article 175 provides that "Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children." (Emphasis supplied). Articles 172 and 173 on establishing the filiation of legitimate children provide: Art. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws. (265a, 266a; 267a) Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. The action already commenced by the child shall survive notwithstanding the death of either or both of the parties. (268a) There can be no dispute that Benita Castro enjoyed the open and continuous possession of the status of an illegitimate child of Eustaquio Castro and that the action of Benita in defending her status in this case is similar to an "action to claim legitimacy" brought during her lifetime. WHEREFORE, the petition is hereby DISMISSED for lack of merit. The questioned decision of the Court of Appeals is AFFIRMED. SO ORDERED. Fernan , C.J. (Chairman), Feliciano, Bidin and Cortes, JJ., concur. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 139882 August 16, 2000

ORIENTAL ASSURANCE CORPORATION, petitioner, vs. SOLIDBANK CORPORATION, respondent. DECISION PANGANIBAN, J.: The retroactive application, of procedural rules to pending cases is well settled. Hence, the 1997 Rules of Civil Procedure, which require the payment of docket fees upon the filing of the notice of appeal, applies to the present case. The Case Before us is a Petition for Review on Certiorari under Rule 45, assailing the March 8, 1999 and 2 the June 4, 1999 Resolutions of the Court of Appeals (CA). The first Resolution reads as follows: "The Court considers the appeal of Leonila Cui and Oriental Assurance Corporation ABANDONED and DISMISSED for their failure to pay the required docket fees (Section 1 [c], Rule 50 of the 1997 Rules of Civil Procedure, as amended.)" (emphasis in the original) The second Resolution denied petitioner's Motion for Reconsideration. The Facts Petitioner Oriental Assurance Corporation issued Fire Insurance Policy No. F-92/22733-D,
1

insuring the stock of finished and/or unfinished products including raw materials, machinery and equipment belonging to Wear Me Garments Manufacturing, Inc. (Wear Me). The policy insured against loss and/or damage by fire from March 20, 1991 to March 20, 1992. The policy was subsequently renewed for another year from March 20, 1992 to March 20, 1993 under Renewal Receipt No. 40948. A Memorandum stating that the policy was "[m]ade further subject to MORTGAGEE CLAUSE in favor of SOLIDBANK CORPORATION"' was typewritten on the face of the receipt. On April 27, 1993, petitioner issued another Fire Insurance Policy (No. F-93-40690-D) insuring the same items of Wear Me from March 20, 1993 to March 20, 1994. On July 12, 1993, a fire broke out at the factory of Wear Me, destroying a major portion of the 3 insured properties. Wear Me submitted to petitioner and its co-insurers a Notice of Loss for the value of the damaged properties. The claims were denied. As holder of trust receipts over the burned goods, Solidbank Corporation sent an undated telegram to petitioner, asking the latter to pay the proceeds of Fire Insurance Policy No. F92/22733-D. Petitioner refused to comply, because the Policy did not contain a mortgagee clause in favor of Solidbank. Before the Regional Trial Court of Manila (RTC), respondent then instituted Civil Case No. 9470505 against petitioner and Wear Me; as well as Angelita Amparo Go and Arnold A. Go, Leonila Cui, and Prudential Guarantee and Assurance Inc. Acting favorably on respondent's Motion for 5 6 Summary Judgment, the RTC rendered a Decision, the dispositive part of which reads: "WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and against the defendants as follows: 1.1 Holding that the plaintiff is entitled to be paid under the loan of P1.2 Million and under the five trust receipts the sum of P4,797, 294.83, plus interests and other charges form December 29, 1992, until fully paid; 1.2 Holding defendant WEAR ME, Angelita Amparo Go and spouse, Arnold A. Go, jointly and severally liable to pay the plaintiff the above amounts; 1.3 Prudential Guarantee and Assurance, Inc., and Oriental Assurance Corporation, are held jointly and severally liable to pay the plaintiff, together with defendants WEAR ME, Angelita Amparo Go and her spouse, Arnold A. Go, the above amounts but limited to the extent of the insurance coverage representing the insurance coverage assigned to Solidbank Corporation under the two (2) fire insurance policies; 1.4 Leonila Cui is held jointly and severally liable to the plaintiff, together with all the other defendants, but only with respect to the loan of P1.2 million and the accrued interest and penalties. 2. Ordering all the defendants jointly and severally to pay the plaintiff a sum equal to 10% of the 7 amounts above payable plus the costs of the suit." On August 18, 1995, respondent filed a Motion for Execution pending appeal. It was opposed by petitioner, which filed a Motion for Reconsideration of the RTC Decision. Subsequently, the trial court issued an Omnibus Order granting the Motion for Execution and denying the Motion for Reconsideration.1wphi1 On October 23, 1995, petitioner appealed. the
4

RTC Decision and Omnibus Order to the Court of Appeals. It should be added that before elevating the records of the case to the appellate court, the RTC granted respondent's Motion to Stay Execution Pending Appeal Based on Supersedeas Bond. As earlier mentioned, the CA denied petitioner's appeal and subsequent Motion for 8 Reconsideration. Hence, this recourse to this Court. The Issue In its Memorandum, petitioner submits for the consideration of this Court this lone issue: "xxx [W]hether or not the Court of Appeals x x x committed reversible error in giving retroactive effect to Section 1 (c) of Rule 50 of the 1997 Rules of Civil Procedure [dismissing] petitioner's 9 appeal for failure of the petitioner to pay the appellate court docket and other lawful fees." The Court's Ruling The Petition is devoid of merit. Sole Issue: Retroactive Effect of Rules of Procedure According to both parties, the sole controversy is the retroactive application of Section 1 (c), Rule 50 of the 1997 Rules of Court, which provides: "SECTION 1. Grounds for dismissal of appeal. -- An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds: xxx xxx xxx

(c) Failure of the appellant to pay the docket and other lawful fees as provided in section 5 of 10 Rule 40 and section 4 of Rule 41;" Section 4 of Rule 41 in turn reads: "SEC. 4. Appellate court docket and other lawful fees. -- Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other lawful fees. Proof of payment of said fees shall be transmitted to the appellate court together with the original record or the record on appeal." Petitioner contends that these Rules cannot be given retroactive effect because such action 11 would impair its "vested" rights under the old Rules. The latter required an appellant to pay the docket fees within fifteen days from the receipt of notice from the CA clerk of court that the record on appeal has been received. The retroactive application of procedural rules to pending cases is undoubtedly well settled. 13 Petitioner even admits this in its efforts to reason out its case. For this reason alone, the present Petition should be dismissed. Even assuming that it is entitled to the aforecited right, the CA's dismissal of the appeal still stands.
12

Counsel's Negligence In Arambulo v. CA, a case in which the required notice invoked by herein petitioner was sent to the wrong counsel, we held: "Both the Withdrawal of Appearance of Atty. Jimenez and the Appearance of Atty. Pineda are undeniably found in the original record of Civil Case No. 5301 and are explicitly referred to in the Summary Index in the record of CA-G.R. CV No. 32348. And since the withdrawal of Atty. Jimenez had taken effect upon its filing before the trial court on 12 February 1991, the notice to pay the docket and other fees sent to him by the Judicial Records Division of the Court of Appeals on 4 March 1991 was thus void or otherwise ineffective. Receipt thereof by him did not operate as notice to the Arambulos. It is a fact on record that no notice to pay the docket fee was sent to and received by Atty. Pineda, therefore, the 15-day period to pay the required docket fee did not even commence to run." (emphasis ours) Even if we assume that petitioner is entitled to the notice mentioned in the old Rules, the appeal may be dismissed nonetheless, due to petitioner and its counsel's negligence in inquiring on the status of the appeal. Again, Arambulo is illuminating, as shown below: "Nevertheless, the appeal can be dismissed, not on the basis of the respondent Court of Appeals' error but on a different ground for which Atty. Pineda must answer. As the new counsel for petitioners, it was incumbent upon him, consistent with his duty to serve his client with competence and diligence, to inquire either from the trial court or the appellate court about the status of the appeal since he had not received any notice to pay the docketing and other fees despite the lapse of several months from the time he entered his appearance. While he had every reason to expect that the office of the Clerk of Court of the Court of Appeals would faithfully comply with Sections 2(3) and 3, Rule 4 of the Revised Internal Rules of the Court of Appeals on the issuance of notice to the parties to pay the docketing and other fees, his failure to receive the notice for so long a time should have alarmed him to the possibility that something must have gone awry somewhere." (Emphasis ours) Indeed, it is the duty of petitioner's counsel to check the status of a pending appeal. This duty is even more compelling in this case because the appeal had been pending for over three 17 years, and counsel had not received any notice to pay the required docket and other lawful fees. These circumstances should have compelled to action petitioner's counsel, whose reason for the delay was flimsy and unacceptable. Erroneous and irrelevant is the allegation that "[t]he long pendency of petitioner's appeal was due to the filing by Prudential of the petition for certiorari 18 and the filing by the respondent of the motion to dismiss the appeal." We stress that the relevant matter is the failure of petitioner to check the status of its appeal. Under the 19 circumstances, it is bound by the negligence of its counsel. In view of the foregoing conclusion, the parties' lengthy discussions of the merits of the appealed case need not be ruled upon. WHEREFORE, the Petition is DENIED and the assailed Resolutions AFFIRMED. Costs against petitioner. SO ORDERED. Melo, (Chairman), Vitug, Purisima, and Gonzaga-Reyes, JJ., concur.
15 16 14

Footnotes

Rollo, p. 112; penned by Justice Angelina Sandoval Gutierrez and concurred in by Justices Romeo A. Brawner and Martin S. Villarama Jr.
2

Rollo, p. 116.

Namely, Blue Cross Insurance, Inc., Central Surety & Insurance Co., Cibeles Insurance Corporation, Liberty Insurance Corporation, Philippine British Assurance Co., Philippine First Insurance Co., Commonwealth Insurance Inc., Pioneer Asia Insurance Corporation, Prudential Guarantee & Assurance Inc., Reliance Surety & Insurance Co., and Western Guaranty Corporation.
4

Branch 49, presided by Judge Salvador P. De Guzman Jr.

This was actually a Supplemental Motion for Summary Judgement submitted together with an Omnibus Motion for Reconsideration of the Order dated February 23, 1995, denying the first Motion for Summary Judgment.
6

Dated July 27, 1995. RTC Decision, p. 9; rollo, p. 90.

The case was deemed submitted for resolution on May 12, 2000, upon receipt by this Court of Respondents Memorandum, signed by Atty. Maximino Z. Banaga Jr. of De los Reyes Banaga Briones & Associates. Petitioners Memorandum, signed by Atty. Alejandro P. Ruiz Jr., was received earlier on April 28, 2000.
9

Memorandum for Petitioner, p. 7; rollo, p. 182.

10

The Supreme Court En Banc Resolution dated February 17, 1998 inserted "section 5 of Rule 40."
11

These are 4 and 5, Rule 46 of the old Rules of Court, which provide:

"SEC. 4. Notice of receipt of record. -- The clerk upon receiving the record on appeal shall cause a notice of that fact to be served on the parties. "SEC. 5. Duty of appellant upon receipt of notice. -- It shall be the duty of the appellant, within fifteen (15) days from the date of the notice referred to in the preceding section, to pay to the clerk of the Court of Appeals the fee for the docketing of the appeal, and within sixty (60) days from such notice to submit to the court forty (40) printed copies of the record on appeal, together with proof of service of fifteen (15) printed copies thereof upon the appellee."
12

See People v. Sumilang, 77 Phil 764, December 18, 1946; Alday v. Camilon, 120 SCRA 521, January 31, 1983; Lim Law v. Olympic Sawmill Co., 129 SCRA 439, May 28, 1984; Bernardo v. CA, 168 SCRA 439, December 14, 1988; Duremdes v. Commission on Elections, 178 SCRA 746, October 27, 1989; Ocampo v. CA, 180 SCRA 27, December 8, 1989; Peoples Financing Corp. v. CA, 192 SCRA 34, December 4, 1990; Aris (Phil.) Inc. v. NLRC, 200 SCRA 246, August 5, 1991; Asset Privatization Trust v. CA, 229 SCRA 627, February 3, 1994; Del Rosario v. CA, 241 SCRA 519, February 21, 1995; Diu v. CA, 251 SCRA 472, December 19, 1995.
13

Petitioners Memorandum, pp. 10-11; rollo, pp. 185-186. 226 SCRA 589, 599, September 17, 1993, per Davide Jr., J. (Now CJ)

14

15

Canon 18 of the Code of Professional Responsibility provides: "A lawyer shall serve his client with competence and diligence."
16

Arambulo v. CA, supra. See Estella v. CA, 185 SCRA 732, May 28, 1990, cited in respondents Memorandum.
17

The notice of appeal was filed on October 24, 1995 (October 23, 1995, according to respondent). The CA Resolution dismissing the appeal was received by petitioner on March 24, 1999.
18

Petitioners Memorandum, p. 13; rollo, p. 188. Reyes v. CA, 189 SCRA 46, August 24, 1990.

19

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. L-30061 February 27, 1974 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellees, vs. JOSE JABINAL Y CARMEN, defendant-appellant. Office of the Solicitor General Felix V. Makasiar and Solicitor Antonio M. Martinez for plaintiffappellee. Pedro Panganiban y Tolentino for defendant-appellant.

ANTONIO, J.:p Appeal from the judgment of the Municipal Court of Batangas (provincial capital), Batangas, in Criminal Case No. 889, finding the accused guilty of the crime of Illegal Possession of Firearm and Ammunition and sentencing him to suffer an indeterminate penalty ranging from one (1) year and one (1) day to two (2) years imprisonment, with the accessories provided by law, which raises in issue the validity of his conviction based on a retroactive application of Our ruling in 1 People v. Mapa. The complaint filed against the accused reads: That on or about 9:00 o'clock, p.m., the 5th day of September, 1964, in the poblacion, Municipality of Batangas, Province of Batangas, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a person not authorized by law, did then and there

wilfully, unlawfully and feloniously keep in his possession, custody and direct control a revolver Cal. .22, RG8 German Made with one (1) live ammunition and four (4) empty shells without first securing the necessary permit or license to possess the same. At the arraignment on September 11, 1964, the accused entered a plea of not guilty, after which trial was accordingly held. The accused admitted that on September 5, 1964, he was in possession of the revolver and the ammunition described in the complaint, without the requisite license or permit. He, however, claimed to be entitled to exoneration because, although he had no license or permit, he had an appointment as Secret Agent from the Provincial Governor of Batangas and an appointment as Confidential Agent from the PC Provincial Commander, and the said appointments expressly carried with them the authority to possess and carry the firearm in question. Indeed, the accused had appointments from the above-mentioned officials as claimed by him. His appointment from Governor Feliciano Leviste, dated December 10, 1962, reads: Reposing special trust and confidence in your civic spirit, and trusting that you will be an effective agent in the detection of crimes and in the preservation of peace and order in the province of Batangas, especially with respect to the suppression of trafficking in explosives, jueteng, illegal cockfighting, cattle rustling, robbery and the detection of unlicensed firearms, you are hereby appointed a SECRET AGENT of the undersigned, the appointment to take effect immediately, or as soon as you have qualified for the position. As such Secret Agent, your duties shall be those generally of a peace officer and particularly to help in the preservation of peace and order in this province and to make reports thereon to me once or twice a month. It should be clearly understood that any abuse of authority on your part shall be considered sufficient ground for the automatic cancellation of your appointment and immediate separation from the service. In accordance with the decision of the Supreme Court in G.R. No. L-12088 dated December 23, 1959, you will have the right to bear a firearm, particularly described below, for use in connection with the performance of your duties. By virtue hereof, you may qualify and enter upon the performance of your duties by taking your oath of office and filing the original thereof with us. Very truly yours, (Sgd.) FELICIANO LEVISTE Provincial Governor FIREARM AUTHORIZED TO CARRY: Kind: ROHM-Revolver Make: German SN: 64 Cal: .22 On March 15, 1964, the accused was also appointed by the PC Provincial Commander of Batangas as Confidential Agent with duties to furnish information regarding smuggling activities, wanted persons, loose firearms, subversives and other similar subjects that might affect the peace and order condition in Batangas province, and in connection with these duties he was temporarily authorized to possess a ROHM revolver, Cal. .22 RG-8 SN-64, for his personal

protection while in the performance of his duties. The accused contended before the court a quo that in view of his above-mentioned appointments as Secret Agent and Confidential Agent, with authority to possess the firearm subject matter of the prosecution, he was entitled to acquittal on the basis of the Supreme Court's decision in 2 3 People vs. Macarandang and People vs. Lucero. The trial court, while conceding on the basis of the evidence of record the accused had really been appointed Secret Agent and Confidential Agent by the Provincial Governor and the PC Provincial Commander of Batangas, respectively, with authority to possess and carry the firearm described in the complaint, nevertheless held the accused in its decision dated December 27, 1968, criminally liable for illegal possession of a firearm and ammunition on the ground that the rulings of the Supreme Court in the cases of Macarandang and Lucero were reversed and abandoned in People vs. Mapa, supra. The court considered as mitigating circumstances the appointments of the accused as Secret Agent and Confidential Agent. Let us advert to Our decisions in People v. Macarandang, supra, People v. Lucero, supra, and People v. Mapa, supra. In Macarandang, We reversed the trial court's judgment of conviction against the accused because it was shown that at the time he was found to possess a certain firearm and ammunition without license or permit, he had an appointment from the Provincial Governor as Secret Agent to assist in the maintenance of peace and order and in the detection of crimes, with authority to hold and carry the said firearm and ammunition. We therefore held that while it is true that the Governor has no authority to issue any firearm license or permit, nevertheless, section 879 of the Revised Administrative Code provides that "peace officers" are exempted from the requirements relating to the issuance of license to possess firearms; and Macarandang's appointment as Secret Agent to assist in the maintenance of peace and order and detection of crimes, sufficiently placed him in the category of a "peace officer" equivalent even to a member of the municipal police who under section 879 of the Revised Administrative Code are exempted from the requirements relating to the issuance of license to possess firearms. In Lucero, We held that under the circumstances of the case, the granting of the temporary use of the firearm to the accused was a necessary means to carry out the lawful purpose of the batallion commander to effect the capture of a Huk leader. In Mapa, expressly abandoning the doctrine in Macarandang, and by implication, that in Lucero, We sustained the judgment of conviction on the following ground: The law is explicit that except as thereafter specifically allowed, "it shall be unlawful for any person to ... possess any firearm, detached parts of firearms or ammunition therefor, or any instrument or implement used or intended to be used in the manufacture of firearms, parts of firearms, or ammunition." (Sec. 878, as amended by Republic Act No. 4, Revised Administrative Code.) The next section provides that "firearms and ammunition regularly and lawfully issued to officers, soldiers, sailors, or marines [of the Armed Forces of the Philippines], the Philippine Constabulary, guards in the employment of the Bureau of Prisons, municipal police, provincial governors, lieutenant governors, provincial treasurers, municipal treasurers, municipal mayors, and guards of provincial prisoners and jails," are not covered "when such firearms are in possession of such officials and public servants for use in the performance of their official duties." (Sec. 879, Revised Administrative Code.) The law cannot be any clearer. No provision is made for a secret agent. As such he is not exempt. ... . It will be noted that when appellant was appointed Secret Agent by the Provincial Government in 1962, and Confidential Agent by the Provincial Commander in 1964, the prevailing doctrine on the matter was that laid down by Us in People v. Macarandang (1959) and People v. Lucero (1958). Our decision in People v. Mapa reversing the aforesaid doctrine came only in 1967. The sole question in this appeal is: Should appellant be acquitted on the basis of Our rulings in Macarandang and Lucero, or should his conviction stand in view of the complete reversal of the

Macarandang and Lucero doctrine in Mapa? The Solicitor General is of the first view, and he accordingly recommends reversal of the appealed judgment. Decisions of this Court, although in themselves not laws, are nevertheless evidence of what the laws mean, and this is the reason why under Article 8 of the New Civil Code "Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system ... ." The interpretation upon a law by this Court constitutes, in a way, a part of the law as of the date that law originally passed, since this Court's construction merely establishes the contemporaneous legislative intent that law thus construed intends to effectuate. The settled rule supported by numerous authorities is a restatement of legal maxim " legis interpretatio legis vim obtinet " the interpretation placed upon the written law by a competent court has the force of law. The doctrine laid down in Lucero and Macarandang was part of the jurisprudence, hence of the law, of the land, at the time appellant was found in possession of the firearm in question and when he arraigned by the trial court. It is true that the doctrine was overruled in the Mapa case in 1967, but when a doctrine of this Court is overruled and a different view is adopted, the new doctrine should be applied prospectively, and should not apply to parties who had relied on the old doctrine and acted on the faith thereof. This is especially true in the construction and application of criminal laws, where it is necessary that the punishability of an act be reasonably foreseen for the guidance of society. It follows, therefore, that considering that appellant conferred his appointments as Secret Agent and Confidential Agent and authorized to possess a firearm pursuant to the prevailing doctrine enunciated in Macarandang and Lucero, under which no criminal liability would attach to his possession of said firearm in spite of the absence of a license and permit therefor, appellant must be absolved. Certainly, appellant may not be punished for an act which at the time it was done was held not to be punishable. WHEREFORE, the judgment appealed from is hereby reversed, and appellant is acquitted, with costs de oficio. Zaldivar (Chairman), Barredo, Fernandez and Aquino, JJ., concur. Fernando, J., took no part.

Footnotes 1 L-22301, August 30, 1967, 20 SCRA 1164. 2 106 Phil. (1959), 713. 3 103 Phil. (1958), 500.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 92326 January 24, 1992 REPUBLIC OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS and ZENAIDA C. BOBILES, respondents. The Solicitor General for petitioner. Mariano B. Miranda for private respondent.

REGALADO, J.: Dissatisfied with the decision of respondent Court of Appeals promulgated on February 20, 1990 1 2 which affirmed in toto the decision of Branch 2 of the Regional Trial Court of Legaspi City granting the petition of herein private respondent to adopt the minor Jason Condat, petitioner seeks the reversal thereof in the present petition for review on certiorari. On February 2, 1988, Zenaida Corteza Bobiles filed a petition to adopt Jason Condat, then six (6) years old and who had been living with her family since he was four (4) months old, before the 3 Regional Trial Court of Legaspi City, docketed therein as Special Proceeding No. 1386. The court a quo, finding the petition to be sufficient in form and substance, issued an order dated 4 February 15, 1988 setting the petition for hearing on March 28, 1988. The order was duly published, with copies thereof seasonably served on the Solicitor General; Assistant Provincial Fiscal Mediavillo, Jr. of Albay; Salvador Condat, father of the child; and the social worker assigned to the court. A copy of said order was posted on the bulletin board of the court and in 5 the other places it had required for that purpose. Nobody appeared to oppose the petition. Compliance with the jurisdictional requirements having been proved at the hearing, the testimonies of herein private respondent, together with that of her husband, Dioscoro Bobiles, and one Ma. Luz Salameno of the Department of Social Welfare and Development were taken and admitted in the proceedings. On March 20, 1988, the trial court rendered judgment disposing as follows: ACCORDINGLY, it is declared that henceforth, the minor child, JASON CONDAT, be freed from all legal obligations of obedience and maintenance with respect to his natural parents, and be, to all intents and purposes, the child of the spouses Dioscoro and Zenaida Bobiles, and the surname of the child be changed to "Bobiles" which is the surname of the petitioner. Furnish the Office of the Solicitor General, Manila, the Department of Social Welfare and

Development, Regional Office, Region V, Legaspi City, and the Local Civil Registrar of Tiwi, 6 Albay, with copies of this decision. Herein petitioner appealed to the Court of Appeals which, as earlier stated, affirmed the aforesaid decision of the court below. Hence, this present petition with the following assignment of errors: 1. The Honorable Court of Appeals erred in ruling that the Family Code cannot be applied retroactively to the petition for adoption filed by Zenaida C. Bobiles; and 2 The Honorable Court of Appeals erred in affirming the trial court's decision which granted the 7 petition to adopt Jason Condat in favor of spouses Dioscoro Bobiles and Zenaida C. Bobiles. The petition for adoption was filed by private respondent Zenaida C. Bobiles on February 2, 1988, when the law applicable was Presidential Decree No. 603, the Child and Youth Welfare Code. Under said code, a petition for adoption may be filed by either of the spouses or by both of them. However, after the trial court rendered its decision and while the case was pending on appeal in the Court of Appeals, Executive Order No. 209, the Family Code, took effect on August 3, 1988. Under the said new law, joint adoption by husband and wife is mandatory. On the foregoing consideration, petitioner contends that the petition for adoption should be dismissed outright for it was filed solely by private respondent without joining her husband, in violation of Article 185 of the Family Code which requires joint adoption by the spouses. It argues that the Family Code must be applied retroactively to the petition filed by Mrs. Bobiles, as the latter did not acquire a vested right to adopt Jason Condat by the mere filing of her petition for adoption. We are not persuaded. Preliminarily, we observe that petitioner's theory implies that the non-inclusion of Dioscoro Bobiles as a co-petitioner is a jurisdictional defect, hence its prayer for an outright dismissal on that score. It could not be taking exception only on the ground of non-joinder since petitioner must be aware that non-joinder is not a ground for the dismissal of an action or a special proceeding. 8 We further apprehend that this objection has been raised for the first time on appeal in respondent court. Nonetheless, we shall clarify petitioner's misgivings as postulated in its aforestated assignment of errors. Article 246 of the Family Code provides for retroactive effect of appropriate relevant provisions thereof, subject to the qualification that such retrospective application will not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. A vested right is one whose existence, effectivity and extent does not depend upon events foreign 9 to the will of the holder. The term expresses the concept of present fixed interest which in right reason and natural justice should be protected against arbitrary State action, or an innately just and imperative right which enlightened free society, sensitive to inherent and irrefragable 10 individual rights, cannot deny. Vested rights include not only legal or equitable title to the enforcement of a demand, but also an exemption from new obligations created after the right has 11 vested. Under the Child and Youth Welfare Code, private respondent had the right to file a petition for adoption by herself, without joining her husband therein. When Mrs. Bobiles filed her petition, she was exercising her explicit and unconditional right under said law. Upon her filing thereof, her right to file such petition alone and to have the same proceed to final adjudication, in accordance with the law in force at the time, was already vested and cannot be prejudiced or impaired by the enactment of a new law. When private respondent filed her petition in Special Proceeding No. 1386, the trial court

acquired jurisdiction thereover in accordance with the governing law. Jurisdiction being a matter of substantive law, the established rule is that the jurisdiction of the court is determined by the 12 statute in force at the time of the commencement of the action. We do not find in the present case such facts as would constitute it as an exception to the rule. The first error assigned by petitioner warrants a review of applicable local and foreign jurisprudence. For that purpose, we start with the premise that Article 185 of the Family Code is remedial in nature. Procedural statutes are ordinarily accorded a retrospective construction in the sense that they may be applied to pending actions and proceedings, as well as to future actions. However, they will not be so applied as to defeat procedural steps completed before their 13 enactment. Procedural matters are governed by the law in force when they arise, and procedural statutes are generally retroactive in that they apply to pending proceedings and are not confined to those begun after their enactment although, with respect to such pending proceedings, they affect only 14 procedural steps taken after their enactment. The rule that a statutory change in matters of procedure will affect pending actions and proceedings, unless the language of the act excludes them from its operation, is not so extensive that it may be used to validate or invalidate proceedings taken before it goes into effect, since procedure must be governed by the law regulating it at the time the question of procedure arises.
15

The jurisdictional, as distinguished from the purely procedural, aspect of a case is substantive in nature and is subject to a more stringent rule. A petition cannot be dismissed by reason of failure to comply with a law which was not yet in force and effect at the time. As long as the petition for adoption was sufficient in form and substance in accordance with the law in governance at the 16 time it was filed, the court acquires jurisdiction and retains it until it fully disposes of the case. To repeat, the jurisdiction of the court is determined by the statute in force at the time of the commencement of the action. Such jurisdiction of a court, whether in criminal or civil cases, once it attaches cannot be ousted by subsequent happenings or events, although of a character which 17 would have prevented jurisdiction from attaching in the first instance. On the second issue, petitioner argues that, even assuming that the Family Code should not apply retroactively, the Court of Appeals should have modified the trial court's decision by granting the adoption in favor of private respondent Zenaida C. Bobiles only, her husband not being a petitioner. We do not consider this as a tenable position and, accordingly, reject the same. Although Dioscoro Bobiles was not named as one of the petitioners in the petition for adoption filed by his wife, his affidavit of consent, attached to the petition as Annex "B" and expressly made an integral part thereof, shows that he himself actually joined his wife in adopting the child. The pertinent parts of his written consent read as follows: xxx xxx xxx 2. That my wife, ZENAIDA O. CORTEZA BOBILES and I mutually desire to adopt as our child , a boy named JASON CONDAT, still a minor being six (6) years old, likewise residing at 18 C. Imperial Street, Legaspi City, Albay, also in the Philippines; 3. That we are filing the corresponding Petition for Adoption of said minor child, JASON CONDAT, before the Juvenile and Domestic Relations court, now the Regional Trial Court in Legaspi City, Albay in the Philippines;

4. That I, Dioscoro C. Bobiles as the husband and father, am giving my lawful consent to this adoption of said minor child, JASON CONDAT; 5. That further, my wife ZENAIDA O. CORTEZA BOBILES, and I have continuously reared and cared for this minor child, JASON CONDAT since birth; 6. That as a result thereof, my wife and I have developed a kind of maternal and paternal love for the boy as our very own, exercising therein the care, concern and diligence of a good father toward him; 7. That I am executing this document, an AFFIDAVIT OF CONSENT for whatever it is worth in the premises as to the matter of adoption of this minor child, JASON CONDAT, by my wife ZENAIDA O. CORTEZA BOBILES and by me, DIOSCORO C. BOBILES, in any court of justice; 18 (Emphasis supplied.) xxx xxx xxx The foregoing declarations, and his subsequent confirmatory testimony in open court, are sufficient to make him a co-petitioner. Under the circumstances then obtaining, and by reason of his foreign residence, he must have yielded to the legal advice that an affidavit of consent on his part sufficed to make him a party to the petition. This is evident from the text of his affidavit. Punctiliousness in language and pedantry in the formal requirements should yield to and be eschewed in the higher considerations of substantial justice. The future of an innocent child must not be compromised by arbitrary insistence of rigid adherence to procedural rules on the form of pleadings. We see no reason why the following doctrines in American law should not apply to this case and, for that matter, in our jurisdiction. It is a settled rule therein that adoption statutes, as well as matters of procedure leading up to adoption, should be liberally construed to carry out the beneficent purposes of the adoption institution and to protect the adopted child in the rights and 19 privileges coming to it as a result of the adoption. The modern tendency of the courts is to hold that there need not be more than a substantial compliance with statutory requirements to sustain the validity of the proceeding; to refuse would be to indulge in such a narrow and technical construction of the statute as to defeat its intention and beneficial results or to invalidate proceedings where every material requirement of the statute was complied with. In support of this rule it is said that it is not the duty of the courts to bring the judicial microscope to bear upon the case in order that every slight defect may be enlarged and magnified so that a reason may be found for declaring invalid an act consummated years before, but rather to approach the case with the inclination to uphold such acts if it is found that there was a 20 substantial compliance with the statute. The technical rules of pleading should not be stringently applied to adoption proceedings, and it is deemed more important that the petition should contain facts relating to the child and its parents, which may give information to those interested, than that it should be formally correct as a pleading. Accordingly, it is generally held that a petition will confer jurisdiction if it substantially complies with the adoption statute, alleging 21 all facts necessary to give the court jurisdiction. In determining whether or not to set aside the decree of adoption the interests and welfare of the 22 child are of primary and paramount consideration. The welfare of a child is of paramount consideration in proceedings involving its custody and the propriety of its adoption by another, and the courts to which the application for adoption is made is charged with the duty of protecting the child and its interests and, to bring those interests fully before it, it has authority to make rules 23 to accomplish that end. Ordinarily, the approval of the adoption rests in the sound discretion of the court. This discretion should be exercised in accordance with the best interests of the child,

as long as the natural rights of the parents over the child are not disregarded. In the absence of a showing of grave abuse, the exercise of this discretion by the approving official will not be 24 disturbed. In the case at bar, the rights concomitant to and conferred by the decree of adoption will be for 25 the best interests of the child. His adoption is with the consent of his natural parents. The representative of the Department of Social Welfare and Development unqualifiedly recommended 26 the approval of the petition for adoption and the trial court dispensed with the trial custody for several commendatory reasons, especially since the child had been living with the adopting 27 parents since infancy. Further, the said petition was with the sworn written consent of the children of the adopters. The trial court and respondent court acted correctly in granting the petition for adoption and we find no reason to disturb the same. As found and aptly stated by respondent court: "Given the 28 facts and circumstances of the case and considered in the light of the foregoing doctrine, We are of the opinion and so hold that the decree of adoption issued by the court a quo would go a long way towards promoting the welfare of the child and the enhancement of his opportunities for 29 a useful and happy life." Adoption statutes, being humane and salutary, hold the interests and welfare of the child to be of paramount consideration. They are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family in the person of the adopted, as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should be sustained to promote and 30 fulfill these noble and compassionate objectives of the law. WHEREFORE, the instant petition is hereby DENIED. SO ORDERED. Melencio-Herrera, Paras, Padilla and Nocon, JJ., concur.

Footnotes 1 Penned by Justice Oscar M. Herrera, with Justices Jose C. Campos, Jr. and Asaali S. Isnani concurring, in CA-G.R. CV No. 17911. 2 Per Judge Angel M. Alegre in Sp. Proc. No. 1386. 3 Rollo, 15. 4 Original Record, 8. 5 Rollo, 18. 6 Ibid., 25-26. 7 Ibid., 6.

8 Sec. 11, Rule 3, in relation to Sec. 2, Rule 72, Rules of Court. 9 J.B.L. Reyes and R.C. Puno, Outline of Philippine Civil Law, 15 (1964). 10 Ayog, et al., vs. Cusi, etc., et al., 118 SCRA 492, 499 (1982). 11 16A Am Jur 2d, Constitutional Law, 651. 12 People vs. Paderna, 22 SCRA 273 (1968); People vs. Mariano, et al., 71 SCRA 600 (1976); Lee, et al. vs. Presiding Judge, etc., et al., 145 SCRA 408 (1986); Atlas Fertilizer Corp. vs. Navarro, etc., et al., 149 SCRA 432 (1987). 13 82 C.J.S., Statutes, 998. 14 Cohen vs. Reckseit, 53 N.Y.S. 2d 365, 184 Misc. 107. 15 People ex rel. Central New England Ry. Co. vs. State Tax Commission, 26 N.Y.S. 2d 425, 261 App. Div. 416; Mich.-Clugston vs. Rogers, 169 N.W. 9, 10, 203 Mich. 339. 16 Republic vs. Pielago, G.R. No. 72218, Resolution, July 21, 1986. 17 Ramos, et al., vs. Central Bank of the Philippines, 41 SCRA 565 (1971), and cases therein cited. 18 Original Record, 4. This was executed on October 17, 1987 in Chicago, Illinois, U.S.A. where he was then residing due to his employment in the Saint Francis Hospital there, and was duly authenticated in the Philippine Consulate General in that city. 19 2 Am Jur 2d, Adoption, 865. 20 Ibid., id., 900. 21 2 C.J.S., Adoption of Children, 418. 22 2 Am Jur 2d, Adoption, 910. 23 Ibid., id., 907. 24 2 C.J.S., Adoption of Children, 412. 25 Original Record, 3. 26 TSN, March 28, 1988, 7. 27 Rollo, 21-22. 28 Citing Daoang vs. Municipal Judge of San Nicolas, Ilocos Norte, 159 SCRA 369 (1988). 29 Rollo, 29. 30 Bobanovic, et al. vs. Montes, etc., et al., 142 SCRA 485 (1986).

# 1 8 De B o r j a v. Vd a . D e B o r j a G. R. No . L - 2 8 0 4 0 , Au g u st 1 8 , 1 9 7 2 Facts: Upon the death of his wife, Josefa Tangco, Francisco de Borja filed a petition for probate of her will. He was appointed executor and administrator; their son, Jose de Borja, was appointed co administrator. His son Jose became the sole administrator when he died. While a widower Francisco de Borja his second wife, Tasiana Ongsingco. Upon Francisco's death, Tasiana instituted testate proceedings in the CFI of Nueva Ecija, wherein she was appointed special administratrix. The relationship between the children of the first marriage and Tasiana Ongsingco has been plagued with several court suits and counter-suits. Jose and Tasiana entered into a compromise agreement. When submitted to the court for approval the Rizal court approved the compromise agreement, but the Nueva Ecija court declared it void and unenforceable. Tasiana appealed the order of approval contending that the compromise agreement is not valid: (1) the heirs cannot enter into such kind of agreement without first probating the will of Francisco de Borja; (2) that the same involves a compromise on the validity of the marriage between Francisco de Borja and Tasiana Ongsingco; and (3) that even if it were valid, it has ceased to have force and effect. Tasiana Ongsingco and the Probate Court of Nueva Ecija rely on this Court's decision in Guevara vs. Guevara, wherein the Court held that the presentation of a will for probate is mandatory and that the settlement and distribution of an estate on the basis of intestacy when the decedent left a will, is against the law and public policy. On the other hand, in claiming the validity of the compromise agreement, Jose de Borja stresses that at the time it was entered into, the governing provision was Section 1, Rule 74 of the original Rules of Court of 1940, which allowed the extrajudicial settlement of the estate of a deceased person regardless of whether he left a will or not. ISSUE: Whether the compromise agreement is valid, even if the will of Francisco has not yet been probated. HELD: Yes. Decision appealed from is affirmed. RATIO: The agreement stipulated that Tasiana will receive P800,000 as full payment for her hereditary share in the estate of Francisco and Josefa. This provision evidences beyond doubt that the ruling in the Guevara case is not applicable to the cases at bar. There was here no attempt to settle or distribute the estate of Francisco de Borja among the heirs thereto before the probate of his will. The clear object of the contract was merely the conveyance by Tasiana Ongsingco of any and all her individual share and interest, actual or eventual, in the estate of Francisco de Borja and Josefa Tangco. There is no stipulation as to any other claimant, creditor or legatee. And as a hereditary share in a decedent's estate is transmitted or vested immediately from the moment of the death of such causante or predecessor in interest (Civil Code of the Philippines, Art. 777) there is no legal bar to a successor (with requisite contracting capacity) disposing of her or his hereditary share immediately after such death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate. Also, as the surviving spouse of Francisco de Borja, Tasiana Ongsingco was his compulsory heir. Therefore determining the validity of the agreement is unnecessary since her successional interest existed independent of Francisco de Borja's last will and testament and would exist even if such will were not probated at all. Thus, the prerequisite of a previous probate of the will, as established in the Guevara and analogous cases, can not apply to the case

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-15127 May 30, 1961

EMETERIO CUI, plaintiff-appellant, vs. ARELLANO UNIVERSITY, defendant-appellee. G.A.S. Sipin, Jr., for plaintiff-appellant. E. Voltaire Garcia for defendant-appellee. CONCEPCION, J.: Appeal by plaintiff Emeterio Cui from a decision of the Court of First Instance of Manila, absolving defendant Arellano University from plaintiff's complaint, with costs against the plaintiff, and dismissing defendant's counter claim, for insufficiency of proof thereon. In the language of the decision appealed from: The essential facts of this case are short and undisputed. As established by the agreement of facts Exhibits X and by the respective oral and documentary evidence introduced by the parties, it appears conclusive that plaintiff, before the school year 1948-1949 took up preparatory law course in the defendant University. After finishing his preparatory law course plaintiff enrolled in the College of Law of the defendant from the school year 1948-1949. Plaintiff finished his law studies in the defendant university up to and including the first semester of the fourth year. During all the school years in which plaintiff was studying law in defendant law college, Francisco R. Capistrano, brother of the mother of plaintiff, was the dean of the College of Law and legal counsel of the defendant university. Plaintiff enrolled for the last semester of his law studies in the defendant university but failed to pay his tuition fees because his uncle Dean Francisco R. Capistrano having severed his connection with defendant and having accepted the deanship and chancellorship of the College of Law of Abad Santos University, plaintiff left the defendant's law college and enrolled for the last semester of his fourth year law in the college of law of the Abad Santos University graduating from the college of law of the latter university. Plaintiff, during all the time he was studying law in defendant university was awarded scholarship grants, for scholastic merit, so that his semestral tuition fees were returned to him after the ends of semester and when his scholarship grants were awarded to him. The whole amount of tuition fees paid by plaintiff to defendant and refunded to him by the latter from the first semester up to and including the first semester of his last year in the college of law or the fourth year, is in total P1,033.87. After graduating in law from Abad Santos University he applied to take the bar examination. To secure permission to take the bar he needed the transcripts of his records in defendant Arellano University. Plaintiff petitioned the latter to issue to him the needed transcripts. The defendant refused until after he had paid back the P1,033 87 which defendant refunded to him as above stated. As he could not take the bar examination without those transcripts, plaintiff paid to defendant the said sum under protest. This is the sum which plaintiff seeks to recover from defendant in this case. Before defendant awarded to plaintiff the scholarship grants as above stated, he was made to sign the following contract covenant and agreement: "In consideration of the scholarship granted to me by the University, I hereby waive my right to

transfer to another school without having refunded to the University (defendant) the equivalent of my scholarship cash. (Sgd.) Emeterio Cui". It is admitted that, on August 16, 1949, the Director of Private Schools issued Memorandum No. 38, series of 1949, on the subject of "Scholarship," addressed to "All heads of private schools, colleges and universities," reading: 1. School catalogs and prospectuses submitted to this, Bureau show that some schools offer full or partial scholarships to deserving students for excellence in scholarship or for leadership in extra-curricular activities. Such inducements to poor but gifted students should be encouraged. But to stipulate the condition that such scholarships are good only if the students concerned continue in the same school nullifies the principle of merit in the award of these scholarships. 2. When students are given full or partial scholarships, it is understood that such scholarships are merited and earned. The amount in tuition and other fees corresponding to these scholarships should not be subsequently charged to the recipient students when they decide to quit school or to transfer to another institution. Scholarships should not be offered merely to attract and keep students in a school. 3. Several complaints have actually been received from students who have enjoyed scholarships, full or partial, to the effect that they could not transfer to other schools since their credentials would not be released unless they would pay the fees corresponding to the period of the scholarships. Where the Bureau believes that the right of the student to transfer is being denied on this ground, it reserves the right to authorize such transfer. that defendant herein received a copy of this memorandum; that plaintiff asked the Bureau of Private Schools to pass upon the issue on his right to secure the transcript of his record in defendant University, without being required to refund the sum of P1,033.87; that the Bureau of Private Schools upheld the position taken by the plaintiff and so advised the defendant; and that, this notwithstanding, the latter refused to issue said transcript of records, unless said refund were made, and even recommended to said Bureau that it issue a written order directing the defendant to release said transcript of record, "so that the case may be presented to the court for judicial action." As above stated, plaintiff was, accordingly, constrained to pay, and did pay under protest, said sum of P1,033.87, in order that he could take the bar examination in 1953. Subsequently, he brought this action for the recovery of said amount, aside from P2,000 as moral damages, P500 as exemplary damages, P2,000 as attorney's fees, and P500 as expenses of litigation. In its answer, defendant reiterated the stand it took, vis-a-vis the Bureau of Private Schools, namely, that the provisions of its contract with plaintiff are valid and binding and that the memorandum above-referred to is null and void. It, likewise, set up a counterclaim for P10,000.00 as damages, and P3,000 as attorney's fees. The issue in this case is whether the above quoted provision of the contract between plaintiff and the defendant, whereby the former waived his right to transfer to another school without refunding to the latter the equivalent of his scholarships in cash, is valid or not. The lower court resolved this question in the affirmative, upon the ground that the aforementioned memorandum of the Director of Private Schools is not a law; that the provisions thereof are advisory, not mandatory in nature; and that, although the contractual provision "may be unethical, yet it was more unethical for plaintiff to quit studying with the defendant without good reasons and simply because he wanted to follow the example of his uncle." Moreover, defendant maintains in its brief that the aforementioned memorandum of the Director of Private Schools is null and void because said officer had no authority to issue it, and because it had been neither approved by the

corresponding department head nor published in the official gazette. We do not deem it necessary or advisable to consider as the lower court did, the question whether plaintiff had sufficient reasons or not to transfer from defendant University to the Abad Santos University. The nature of the issue before us, and its far reaching effects, transcend personal equations and demand a determination of the case from a high impersonal plane. Neither do we deem it essential to pass upon the validity of said Memorandum No. 38, for, regardless of the same, we are of the opinion that the stipulation in question is contrary to public policy and, hence, null and void. The aforesaid memorandum merely incorporates a sound principle of public policy. As the Director of Private Schools correctly pointed, out in his letter, Exhibit B, to the defendant, There is one more point that merits refutation and that is whether or not the contract entered into between Cui and Arellano University on September 10, 1951 was void as against public policy. In the case of Zeigel vs. Illinois Trust and Savings Bank, 245 Ill. 180, 19 Ann. Case 127, the court said: 'In determining a public policy of the state, courts are limited to a consideration of the Constitution, the judicial decisions, the statutes, and the practice of government officers.' It might take more than a government bureau or office to lay down or establish a public policy, as alleged in your communication, but courts consider the practices of government officials as one of the four factors in determining a public policy of the state. It has been consistently held in America that under the principles relating to the doctrine of public policy, as applied to the law of contracts, courts of justice will not recognize or uphold a transaction which its object, operation, or tendency is calculated to be prejudicial to the public welfare, to sound morality or to civic honesty (Ritter vs. Mutual Life Ins. Co., 169 U.S. 139; Heding vs. Gallaghere 64 L.R.A. 811; Veazy vs. Allen, 173 N.Y. 359). If Arellano University understood clearly the real essence of scholarships and the motives which prompted this office to issue Memorandum No. 38, s. 1949, it should have not entered into a contract of waiver with Cui on September 10, 1951, which is a direct violation of our Memorandum and an open challenge to the authority of the Director of Private Schools because the contract was repugnant to sound morality and civic honesty. And finally, in Gabriel vs. Monte de Piedad, Off. Gazette Supp. Dec. 6, 1941, p. 67 we read: 'In order to declare a contract void as against public policy, a court must find that the contract as to consideration or the thing to be done, contravenes some established interest of society, or is inconsistent with sound policy and good morals or tends clearly to undermine the security of individual rights. The policy enunciated in Memorandum No. 38, s. 1949 is sound policy. Scholarship are awarded in recognition of merit not to keep outstanding students in school to bolster its prestige. In the understanding of that university scholarships award is a business scheme designed to increase the business potential of an education institution. Thus conceived it is not only inconsistent with sound policy but also good morals. But what is morals? Manresa has this definition. It is good customs; those generally accepted principles of morality which have received some kind of social and practical confirmation. The practice of awarding scholarships to attract students and keep them in school is not good customs nor has it received some kind of social and practical confirmation except in some private institutions as in Arellano University. The University of the Philippines which implements Section 5 of Article XIV of the Constitution with reference to the giving of free scholarships to gifted children, does not require scholars to reimburse the corresponding value of the scholarships if they transfer to other schools. So also with the leading colleges and universities of the United States after which our educational practices or policies are patterned. In these institutions scholarships are granted not to attract and to keep brilliant students in school for their propaganda mine but to reward merit or help gifted students in whom society has an established interest or a first lien. (Emphasis supplied.) WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered sentencing the defendant to pay to the plaintiff the sum of P1,033.87, with interest thereon at the legal rate from September 1, 1954, date of the institution of this case, as well as the costs, and dismissing defendant's counterclaim. It is so ordered.

Bengzon, C.J., Padilla, Labrador, Reyes, J.B.L., Barrera, Parades, Dizon, De Leon and Natividad, JJ., concur. Bautista Angelo, J., reserves his vote. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. L-56487 October 21, 1991 REYNALDA GATCHALIAN, petitioner, vs. ARSENIO DELIM and the HON. COURT OF APPEALS, respondents. Pedro G. Peralta for petitioner. Florentino G. Libatique for private respondent.

FELICIANO, J.:p At noon time on 11 July 1973, petitioner Reynalda Gatchalian boarded, as a paying passenger, respondent's "Thames" mini bus at a point in San Eugenio, Aringay, La Union, bound for Bauang, of the same province. On the way, while the bus was running along the highway in Barrio Payocpoc, Bauang, Union, "a snapping sound" was suddenly heard at one part of the bus and, shortly thereafter, the vehicle bumped a cement flower pot on the side of the road, went off the road, turned turtle and fell into a ditch. Several passengers, including petitioner Gatchalian, were injured. They were promptly taken to Bethany Hospital at San Fernando, La Union, for medical treatment. Upon medical examination, petitioner was found to have sustained physical injuries on the leg, arm and forehead, specifically described as follows: lacerated wound, forehead; abrasion, elbow, left; abrasion, knee, left; abrasion, lateral surface, leg, left. 1 On 14 July 1973, while injured. passengers were confined in the hospital, Mrs. Adela Delim, wife of respondent, visited them and later paid for their hospitalization and medical expenses. She also gave petitioner P12.00 with which to pay her transportation expense in going home from the hospital. However, before Mrs. Delim left, she had the injured passengers, including petitioner, sign an already prepared Joint Affidavit which stated, among other things: That we were passengers of Thames with Plate No. 52-222 PUJ Phil. 73 and victims after the said Thames met an accident at Barrio Payocpoc Norte, Bauang, La Union while passing through the National Highway No. 3; That after a thorough investigation the said Thames met the accident due to mechanical defect and went off the road and turned turtle to the east canal of the road into a creek causing physical injuries to us; xxx xxx xxx That we are no longer interested to file a complaint, criminal or civil against the said driver and

owner of the said Thames, because it was an accident and the said driver and owner of the said Thames have gone to the extent of helping us to be treated upon our injuries. xxx xxx xxx 2 (Emphasis supplied) Notwithstanding this document, petitioner Gathalian filed with the then Court of First Instance of La Union an action extra contractu to recover compensatory and moral damages. She alleged in the complaint that her injuries sustained from the vehicular mishap had left her with a conspicuous white scar measuring 1 by 1/2 inches on the forehead, generating mental suffering and an inferiority complex on her part; and that as a result, she had to retire in seclusion and stay away from her friends. She also alleged that the scar diminished her facial beauty and deprived her of opportunities for employment. She prayed for an award of: P10,000.00 for loss of employment and other opportunities; P10,000.00 for the cost of plastic surgery for removal of the scar on her forehead; P30,000.00 for moral damages; and P1,000.00 as attorney's fees. In defense, respondent averred that the vehicular mishap was due to force majeure, and that petitioner had already been paid and moreover had waived any right to institute any action against him (private respondent) and his driver, when petitioner Gatchalian signed the Joint Affidavit on 14 July 1973. After trial, the trial court dismissed the complaint upon the ground that when petitioner Gatchalian signed the Joint Affidavit, she relinquished any right of action (whether criminal or civil) that she may have had against respondent and the driver of the mini-bus. On appeal by petitioner, the Court of Appeals reversed the trial court's conclusion that there had been a valid waiver, but affirmed the dismissal of the case by denying petitioner's claim for damages: We are not in accord, therefore, of (sic) the ground of the trial court's dismissal of the complaint, although we conform to the trial court's disposition of the case its dismissal. IN VIEW OF THE FOREGOING considerations, there being no error committed by the lower court in dismissing the plaintiff-appellant's complaint, the judgment of dismissal is hereby affirmed. Without special pronouncement as to costs. SO ORDERED. 3 In the present Petition for Review filed in forma pauperis, petitioner assails the decision of the Court of Appeals and ask this Court to award her actual or compensatory damages as well as moral damages. We agree with the majority of the Court of Appeals who held that no valid waiver of her cause of action had been made by petitioner. The relevant language of the Joint Affidavit may be quoted again: That we are no longer interested to file a complaint, criminal or civil against the said driver and owner of the said Thames, because it was an accident and the said driver and owner of the said Thames have gone to the extent of helping us to be treated upon our injuries. (Emphasis supplied)

A waiver, to be valid and effective, must in the first place be couched in clear and unequivocal terms which leave no doubt as to the intention of a person to give up a right or benefit which legally pertains to him. 4 A waiver may not casually be attributed to a person when the terms thereof do not explicitly and clearly evidence an intent to abandon a right vested in such person. The degree of explicitness which this Court has required in purported waivers is illustrated in Yepes and Susaya v. Samar Express Transit (supra), where the Court in reading and rejecting a purported waiver said: . . . It appears that before their transfer to the Leyte Provincial Hospital, appellees were asked to sign as, in fact, they signed the document Exhibit I wherein they stated that "in consideration of the expenses which said operator has incurred in properly giving us the proper medical treatment, we hereby manifest our desire to waive any and all claims against the operator of the Samar Express Transit." xxx xxx xxx Even a cursory examination of the document mentioned above will readily show that appellees did not actually waive their right to claim damages from appellant for the latter's failure to comply with their contract of carriage. All that said document proves is that they expressed a "desire" to make the waiver which obviously is not the same as making an actual waiver of their right. A waiver of the kind invoked by appellant must be clear and unequivocal (Decision of the Supreme Court of Spain of July 8, 1887) which is not the case of the one relied upon in this appeal . (Emphasis supplied) If we apply the standard used in Yepes and Susaya, we would have to conclude that the terms of the Joint Affidavit in the instant case cannot be regarded as a waiver cast in "clear and unequivocal" terms. Moreover, the circumstances under which the Joint Affidavit was signed by petitioner Gatchalian need to be considered. Petitioner testified that she was still reeling from the effects of the vehicular accident, having been in the hospital for only three days, when the purported waiver in the form of the Joint Affidavit was presented to her for signing; that while reading the same, she experienced dizziness but that, seeing the other passengers who had also suffered injuries sign the document, she too signed without bothering to read the Joint Affidavit in its entirety. Considering these circumstances there appears substantial doubt whether petitioner understood fully the import of the Joint Affidavit (prepared by or at the instance of private respondent) she signed and whether she actually intended thereby to waive any right of action against private respondent. Finally, because what is involved here is the liability of a common carrier for injuries sustained by passengers in respect of whose safety a common carrier must exercise extraordinary diligence, we must construe any such purported waiver most strictly against the common carrier. For a waiver to be valid and effective, it must not be contrary to law, morals, public policy or good customs. 5 To uphold a supposed waiver of any right to claim damages by an injured passenger, under circumstances like those exhibited in this case, would be to dilute and weaken the standard of extraordinary diligence exacted by the law from common carriers and hence to render that standard unenforceable. 6 We believe such a purported waiver is offensive to public policy. Petitioner Gatchalian also argues that the Court of Appeals, having by majority vote held that there was no enforceable waiver of her right of action, should have awarded her actual or compensatory and moral damages as a matter of course. We have already noted that a duty to exercise extraordinary diligence in protecting the safety of its passengers is imposed upon a common carrier. 7 In case of death or injuries to passengers, a

statutory presumption arises that the common carrier was at fault or had acted negligently "unless it proves that it [had] observed extraordinary diligence as prescribed in Articles 1733 and 1755." 8 In fact, because of this statutory presumption, it has been held that a court need not even make an express finding of fault or negligence on the part of the common carrier in order to hold it liable. 9 To overcome this presumption, the common carrier must slow to the court that it had exercised extraordinary diligence to prevent the injuries. 10 The standard of extraordinary diligence imposed upon common carriers is considerably more demanding than the standard of ordinary diligence, i.e., the diligence of a good paterfamilias established in respect of the ordinary relations between members of society. A common carrier is bound to carry its passengers safely" as far as human care and foresight can provide, using the utmost diligence of a very cautious person, with due regard to all the circumstances". 11 Thus, the question which must be addressed is whether or not private respondent has successfully proved that he had exercised extraordinary diligence to prevent the mishap involving his mini-bus. The records before the Court are bereft of any evidence showing that respondent had exercised the extraordinary diligence required by law. Curiously, respondent did not even attempt, during the trial before the court a quo, to prove that he had indeed exercised the requisite extraordinary diligence. Respondent did try to exculpate himself from liability by alleging that the mishap was the result of force majeure. But allegation is not proof and here again, respondent utterly failed to substantiate his defense of force majeure. To exempt a common carrier from liability for death or physical injuries to passengers upon the ground of force majeure, the carrier must clearly show not only that the efficient cause of the casualty was entirely independent of the human will, but also that it was impossible to avoid. Any participation by the common carrier in the occurrence of the injury will defeat the defense of force majeure. In Servando v. Philippine Steam Navigation Company, 12 the Court summed up the essential characteristics of force majeure by quoting with approval from the Enciclopedia Juridica Espaola: Thus, where fortuitous event or force majeure is the immediate and proximate cause of the loss, the obligor is exempt from liability non-performance. The Partidas, the antecedent of Article 1174 of the Civil Code, defines "caso fortuito" as 'an event that takes place by accident and could not have been foreseen. Examples of this are destruction of houses, unexpected fire, shipwreck, violence of robber. In its dissertation on the phrase "caso fortuito" the Enciclopedia Juridica Espaola says: 'In legal sense and, consequently, also in relation to contracts, a "caso fortuito" presents the following essential characteristics: (1) the cause of the unforeseen and unexpected occurence, or of the failure of the debtor to comply with his obligation, must be independent of the human will; (2) it must be impossible to foresee the event which constitutes the "caso fortuito", or if it can be foreseen, it must be impossible to avoid; (3) the occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner; and (4) the obligor must be free from any participation in the aggravation of the injury resulting to the creditor. Upon the other hand, the record yields affirmative evidence of fault or negligence on the part of respondent common carrier. In her direct examination, petitioner Gatchalian narrated that shortly before the vehicle went off the road and into a ditch, a "snapping sound" was suddenly heard at one part of the bus. One of the passengers, an old woman, cried out, "What happened?" ("Apay addan samet nadadaelen?"). The driver replied, nonchalantly, "That is only normal" ("Ugali ti makina dayta"). The driver did not stop to check if anything had gone wrong with the bus. Moreover, the driver's reply necessarily indicated that the same "snapping sound" had been heard in the bus on previous occasions. This could only mean that the bus had not been checked physically or mechanically to determine what was causing the "snapping sound" which had occurred so frequently that the driver had gotten accustomed to it. Such a sound is obviously alien to a motor vehicle in good operating condition, and even a modicum of concern for life and limb of passengers dictated that the bus be checked and repaired. The obvious continued failure

of respondent to look after the roadworthiness and safety of the bus, coupled with the driver's refusal or neglect to stop the mini-bus after he had heard once again the "snapping sound" and the cry of alarm from one of the passengers, constituted wanton disregard of the physical safety of the passengers, and hence gross negligence on the part of respondent and his driver. We turn to petitioner's claim for damages. The first item in that claim relates to revenue which petitioner said she failed to realize because of the effects of the vehicular mishap. Petitioner maintains that on the day that the mini-bus went off the road, she was supposed to confer with the district supervisor of public schools for a substitute teacher's job, a job which she had held off and on as a "casual employee." The Court of Appeals, however, found that at the time of the accident, she was no longer employed in a public school since, being a casual employee and not a Civil Service eligible, she had been laid off. Her employment as a substitute teacher was occasional and episodic, contingent upon the availability of vacancies for substitute teachers. In view of her employment status as such, the Court of Appeals held that she could not be said to have in fact lost any employment after and by reason of the accident. 13 Such was the factual finding of the Court of Appeals, a finding entitled to due respect from this Court. Petitioner Gatchalian has not submitted any basis for overturning this finding of fact, and she may not be awarded damages on the basis of speculation or conjecture. 14 Petitioner's claim for the cost of plastic surgery for removal of the scar on her forehead, is another matter. A person is entitled to the physical integrity of his or her body; if that integrity is violated or diminished, actual injury is suffered for which actual or compensatory damages are due and assessable. Petitioner Gatchalian is entitled to be placed as nearly as possible in the condition that she was before the mishap. A scar, especially one on the face of the woman, resulting from the infliction of injury upon her, is a violation of bodily integrity, giving raise to a legitimate claim for restoration to her conditio ante. If the scar is relatively small and does not grievously disfigure the victim, the cost of surgery may be expected to be correspondingly modest. In Araneta, et al. vs. Areglado, et al., 15 this Court awarded actual or compensatory damages for, among other things, the surgical removal of the scar on the face of a young boy who had been injured in a vehicular collision. The Court there held: We agree with the appellants that the damages awarded by the lower court for the injuries suffered by Benjamin Araneta are inadequate. In allowing not more than P1,000.00 as compensation for the "permanent deformity and something like an inferiority complex" as well as for the "pathological condition on the left side of the jaw" caused to said plaintiff, the court below overlooked the clear evidence on record that to arrest the degenerative process taking place in the mandible and restore the injured boy to a nearly normal condition, surgical intervention was needed, for which the doctor's charges would amount to P3,000.00, exclusive of hospitalization fees, expenses and medicines. Furthermore, the operation, according to Dr. Dio, would probably have to be repeated in order to effectuate a complete cure, while removal of the scar on the face obviously demanded plastic surgery. xxx xxx xxx The father's failure to submit his son to a plastic operation as soon as possible does not prove that such treatment is not called for. The damage to the jaw and the existence of the scar in Benjamin Araneta's face are physical facts that can not be reasoned out of existence. That the injury should be treated in order to restore him as far as possible to his original condition is undeniable. The father's delay, or even his negligence, should not be allowed to prejudice the son who has no control over the parent's action nor impair his right to a full indemnity. . . . Still, taking into account the necessity and cost of corrective measures to fully repair the damage; the pain suffered by the injured party; his feelings of inferiority due to consciousness of his present deformity, as well as the voluntary character of the injury inflicted; and further considering that a repair, however, skillfully conducted, is never equivalent to the original state,

we are of the opinion that the indemnity granted by the trial court should be increased to a total of P18,000.00. (Emphasis supplied) Petitioner estimated that the cost of having her scar surgically removed was somewhere between P10,000.00 to P15,000.00. 16 Upon the other hand, Dr. Fe Tayao Lasam, a witness presented as an expert by petitioner, testified that the cost would probably be between P5,000.00 to P10,000.00. 17 In view of this testimony, and the fact that a considerable amount of time has lapsed since the mishap in 1973 which may be expected to increase not only the cost but also very probably the difficulty of removing the scar, we consider that the amount of P15,000.00 to cover the cost of such plastic surgery is not unreasonable. Turning to petitioner's claim for moral damages, the long-established rule is that moral damages may be awarded where gross negligence on the part of the common carrier is shown. 18 Since we have earlier concluded that respondent common carrier and his driver had been grossly negligent in connection with the bus mishap which had injured petitioner and other passengers, and recalling the aggressive manuevers of respondent, through his wife, to get the victims to waive their right to recover damages even as they were still hospitalized for their injuries, petitioner must be held entitled to such moral damages. Considering the extent of pain and anxiety which petitioner must have suffered as a result of her physical injuries including the permanent scar on her forehead, we believe that the amount of P30,000.00 would be a reasonable award. Petitioner's claim for P1,000.00 as atttorney's fees is in fact even more modest. 19 WHEREFORE, the Decision of the Court of Appeals dated 24 October 1980, as well as the decision of the then Court of First Instance of La Union dated 4 December 1975 are hereby REVERSED and SET ASIDE.Respondent is hereby ORDERED to pay petitioner Reynalda Gatchalian the following sums: 1) P15,000.00 as actual or compensatory damages to cover the cost of plastic surgery for the removal of the scar on petitioner's forehead; 2) P30,000.00 as moral damages; and 3) P1,000.00 as attorney's fees, the aggregate amount to bear interest at the legal rate of 6% per annum counting from the promulgation of this decision until full payment thereof. Costs against private respondent. SO ORDERED. Fernan, C.J., Gutierrez, Jr., Bidin and Davide, Jr., JJ., concur.

# Footnotes 1 TSN, 19 December 1974, p. 8. 2 Record on Appeal, p. 10. 3 Annex A of Petition; Rollo, pp. 16-26. The Decision was split; Coquia, J. joined the ponente Asunsion, J.; Cuevas, J. concurred in the result, stating that there was a valid waiver of the civil but not of the criminal liability involved; German and Gopengco, JJ., dissented, holding that there was no valid waiver and the claim for damages should be granted. 4 Fernandez vs. Sebido, 70 Phil. 151 (1940); Lang v. Provincial Sheriff of Surigao, et al., 93 Phil. 661 (1953); Andres v. Crown Life Insurance Co., 102 Phil. 919 (1958); Yepes and Susaya v. Samar Express Transit, 17 SCRA 91 (1966).

5 Article 6, Civil Code. 6 See e.g., Maniego v. Castelo, 101 Phil. 293 (1957); Cui v. Arellano University, 2 SCRA 205 (1961). 7 Article 1733 and 1755, Civil Code. 8 Article 1756, Civil Code. 9 Brito Sy v. Malate Taxicab & Garage, Inc., 102 Phil. 482 (1957). 10 Landingin v. Pangasinan Transportation Co., 33 SCRA 284 (1970). 11 Article 1755, Civil Code. 12 117 SCRA 832, 837 (1982). 13 Rollo, p. 18. 14 Article 2199, Civil Code of the Philippines; Suntay Tanjangco vs. Jovellanos, 108 Phil. 713 (1960). 15 104 Phil. 529 (1958). 16 TSN, 15 July 1975, p. 10. 17 Id., 19 December 1974, p. 7. 18 See, e.g., Mecenas v. Court of Appeals, 180 SCRA 83 (1989); Kapalaran Bus Line v. Coronado, 176 SCRA 792 (1989); Sweet Lines, Inc. v. Court of Appeals, 121 SCRA 769 (1983); Ortigas, Jr. v. Lufthansa German Airlines, 64 SCRA 610 (1975); Air France v. Carrascoso, 18 SCRA 155 (1966); La Mallorca and Pampanga Bus Co. v. De Jesus, et al., 17 SCRA 23 (1966); Laguna Tayabas Bus Co. v. Tiongson, et al., 16 SCRA 940 (1966); Lopez, et al. v. Pan American World Airways, 16 SCRA 431 (1966); Laguna Tayabas Bus Co. v. Cornista, 11 SCRA 181 (1964); Verzosa v. Baytan, et al., 107 Phil. 1010 (1960); Layda v. Court of Appeals and Brillantes, 90 Phil. 724 (1952). 19 Article 2208(2) and (11) Civil Code.