REPUBLIC OF THEPHILIPPINES,

Petitioner,

G.R. No. 170340

as well as the deletion of the word married opposite the phrase Date of
marriage of parents because his parents, Juan Kho and Epifania Inchoco
(Epifania), were allegedly not legally married.

Present:
QUISUMBING,* J., Chairperson
CARPIO,**
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.

- versus -

CARLITO I. KHO, MICHAEL KHO,

MERCY
NONA
KHO-FORTUN,
HEDDY MOIRA KHO-SERRANO,
KEVIN DOGMOC KHO (Minor),
and KELLY DOGMOC KHO (Minor),
Respondents.

PROMULGATED:

June 29, 2007

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

The same request to delete the married status of their parents

from their respective birth certificates was made by Carlitos siblings Michael,
Mercy Nona, and Heddy Moira.
With respect to the birth certificates of Carlitos children, he prayed
that the date of his and his wifes marriage be corrected from April 27,
1989 to January 21, 2000, the date appearing in their marriage certificate.
The Local Civil Registrar of Butuan City was impleaded as
respondent.
On April 23, 2001, Carlito et al. filed an Amended Petition[3] in which it
was additionally prayed that Carlitos second name of John be deleted from
his record of birth; and that the name and citizenship of Carlitos father in
his (Carlitos) marriage certificate be corrected from John Kho to Juan
Kho and Filipino to Chinese, respectively.

DECISION

As required, the petition was published for three consecutive

weeks[4] in Mindanao Daily Patrol-CARAGA, a newspaper of general
circulation, after which it was set for hearing on August 9, 2001.

Challenged via petition for review on certiorari is the October 27,

2005 Decision[1] of the Court of Appeals (CA) in CA-G.R. CV No. 78124 which
affirmed the September 4, 2002 Decision[2] of the Regional Trial Court (RTC)
of Butuan City, Branch 5 granting the prayer of respondents Carlito I. Kho
(Carlito), Michael Kho, Mercy Nona Kho-Fortun, and Heddy Moira KhoSerrano for the correction of entries in their birth certificates as well as those
of Carlitos minor children Kevin and Kelly Dogmoc Kho.

In a letter of June 18, 2001 addressed to the trial court, the city civil
registrar[5] stated her observations and suggestions to the proposed
corrections in the birth records of Carlito and his siblings but interposed no
objections to the other amendments.

CARPIO MORALES, J.:

The undisputed facts are as follows:

On February 12, 2001, Carlito and his siblings Michael, Mercy Nona
and Heddy Moira filed before the RTC of Butuan City a verified petition for
correction of entries in the civil registry of Butuan City to effect changes in
their respective birth certificates. Carlito also asked the court in behalf of his
minor children, Kevin and Kelly, to order the correction of some entries in
their birth certificates.
In the case of Carlito, he requested the correction in his birth
certificate of the citizenship of his mother to Filipino instead of Chinese,

On the scheduled hearing of the petition on August 9, 2001, only the

counsel for respondents appeared as the Office of the Solicitor General
(OSG) had yet to enter its appearance for the city civil registrar. The trial
court thus reset the hearing to October 9, 2001.[6] On September 14,
2001,[7] the OSG entered its appearance with an authorization to the city
prosecutor of Butuan City to appear in the case and render assistance to it
(the OSG).
On January 31, 2002, respondents presented documentary evidence
showing compliance with the jurisdictional requirements of the petition. They
also presented testimonial evidence consisting of the testimonies of Carlito
and his mother, Epifania. During the same hearing, an additional correction
in the birth certificates of Carlitos children was requested to the effect that
the first name of their mother be rectified from Maribel to Marivel.

By Decision[8] of September 4, 2002, the trial court directed the local

civil registrar of Butuan City to correct the entries in the record of birth of
Carlito, as follows: (1) change the citizenship of his mother from Chinese to
Filipino; (2) delete John from his name; and (3) delete the word
married opposite the date of marriage of his parents. The last correction
was ordered to be effected likewise in the birth certificates of respondents
Michael, Mercy Nona, and Heddy Moira.
Additionally, the trial court ordered the correction of the birth
certificates of the minor children of Carlito to reflect the date of marriage of
Carlito and Marivel Dogmoc (Marivel) as January 21, 2000, instead of April
27, 1989, and the name Maribel as Marivel.

As for the change in the date of the marriage of Carlito and Marivel,
albeit the CA conceded that it is a substantial alteration, it held that the date
would not affect the minors filiation from legitimate to illegitimate
considering that at the time of their respective births in 1991 and 1993, their
father Carlitos first marriage was still subsisting as it had been annulled only
in 1999.
In light of Carlitos legal impediment to marry Marivel at the time
they were born, their children Kevin and Kelly were illegitimate. It followed,
the CA went on to state, that Marivel was not an indispensable party to the
case, the minors having been represented by their father as required under
Section 5 of Rule 3[9] of the Revised Rules of Court.

With respect to the marriage certificate of Carlito and Marivel, the

corrections ordered pertained to the alteration of the name of Carlitos father
from John Kho to Juan Kho and the latters citizenship from Filipino to
Chinese.

Further, the CA ruled that although Carlito failed to observe the

requirements of Rule 103 of the Rules of Court, he had complied nonetheless
with the jurisdictional requirements for correction of entries in the civil
registry under Rule 108 of the Rules of Court. The petition for correction of
entry in Carlitos birth record, it noted, falls under letter o of the
enumeration under Section 2 of Rule 108.

Petitioner, Republic of the Philippines, appealed the RTC Decision to

the CA, faulting the trial court in granting the petition for correction of
entries in the subject documents despite the failure of respondents to
implead the minors mother, Marivel, as an indispensable party and to offer
sufficient evidence to warrant the corrections with regard to the questioned
married status of Carlito and his siblings parents, and the latters
citizenship.

In the present petition, petitioner contends that since the changes

sought by respondents were substantial in nature, they could only be
granted through an adversarial proceeding in which indispensable parties,
such as Marivel and respondents parents, should have been notified or
impleaded.

Petitioner also faulted the trial court for ordering the change of the
name Carlito John Kho to Carlito Kho for non-compliance with
jurisdictional requirements for a change of name under Rule 103 of the Rules
of Court.
By the assailed Decision of October 27, 2005, the CA denied
petitioners appeal and affirmed the decision of the trial court.

Petitioner further contends that the jurisdictional requirements to

change Carlitos name under Section 2 of Rule 103 of the Rules of Court
were not satisfied because the Amended Petition failed to allege Carlitos
prior three-year bona fide residence in Butuan City, and that the title of the
petition did not state Carlitos aliases and his true name as Carlito John I.
Kho. Petitioner concludes that the same jurisdictional defects attached to
the change of name of Carlitos father.
The petition fails.

The CA found that Rule 108 of the Revised Rules of Court, which
outlines the proper procedure for cancellation or correction of entries in the
civil registry, was observed in the case.
Regarding Carlitos minor children Kevin and Kelly, the appellate
court held that the correction of their mothers first name from Maribel to
Marivel was made to rectify an innocuous error.

It can not be gainsaid that the petition, insofar as it sought to

change the citizenship of Carlitos mother as it appeared in his birth
certificate and delete the married status of Carlitos parents in his and his
siblings respective birth certificates, as well as change the date of marriage
of Carlito and Marivel involves the correction of not just clerical errors of a
harmless and innocuous nature.[10] Rather, the changes entail substantial
and controversial amendments.

For the change involving the nationality of Carlitos mother as

reflected in his birth certificate is a grave and important matter that has a
bearing and effect on the citizenship and nationality not only of the parents,
but also of the offspring.[11]
Further, the deletion of the entry that Carlitos and his siblings
parents were married alters their filiation from legitimate to illegitimate,
with significant implications on their successional and other rights.
Clearly, the changes sought can only be granted in an adversary
proceeding. Labayo-Rowe v. Republic[12] explains the raison d etre:
x x x. The philosophy behind this requirement lies in the
fact that the books making up the civil register and all
documents relating thereto shall be prima facie evidence of
the facts therein contained. If the entries in the civil
register could be corrected or changed through mere
summary proceedings and not through appropriate
action wherein all parties who may be affected by the
entries are notified or represented, the door to fraud
or other mischief would be set open, the
consequence of which might be detrimental and far
reaching. x x x (Emphasis supplied)
In Republic v. Valencia,[13] however, this Court ruled, and has since
repeatedly ruled, that even substantial errors in a civil registry may be
corrected through a petition filed under Rule 108.[14]
It is undoubtedly true that if the subject matter of a
petition is not for the correction of clerical errors of a
harmless and innocuous nature, but one involving nationality
or citizenship, which is indisputably substantial as well as
controverted, affirmative relief cannot be granted in a
proceeding summary in nature. However, it is also true
that a right in law may be enforced and a wrong may
be remedied as long as the appropriate remedy is
used. This Court adheres to the principle that even
substantial errors in a civil registry may be corrected
and the true facts established provided the parties
aggrieved by the error avail themselves of the
appropriate adversary proceeding.
xxxx

What is meant by appropriate adversary proceeding?

Blacks Law Dictionary defines adversary proceeding[] as follows:
One having opposing parties; contested, as
distinguished from an ex parte application, one of which the
party seeking relief has given legal warning to the other
party, and afforded the latter an opportunity to contest it. x
x x [15] (Emphasis, italics and underscoring supplied)
The enactment in March 2001 of Republic Act No. 9048, otherwise
known as AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL
REGISTRAR OR THE CONSUL GENERAL TO CORRECT A CLERICAL OR
TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME
OR NICKNAME IN THE CIVIL REGISTER WITHOUT NEED OF JUDICIAL
ORDER, has been considered to lend legislative affirmation to the judicial
precedence that substantial corrections to the civil status of persons
recorded in the civil registry may be effected through the filing of a petition
under Rule 108.[16]
Thus, this Court in Republic v. Benemerito[17] observed that the
obvious effect of Republic Act No. 9048 is to make possible the
administrative correction of clerical or typographical errors or change of first
name or nickname in entries in the civil register, leaving to Rule 108 the
correction of substantial changes in the civil registry in appropriate
adversarial proceedings.
When all the procedural requirements under Rule 108 are thus
followed, the appropriate adversary proceeding necessary to effect
substantial corrections to the entries of the civil register is satisfied.[18] The
pertinent provisions of Rule 108 of the Rules of Court read:
SEC. 3. Parties. When cancellation or correction of
an entry in the civil registrar is sought, the civil registrar
and all persons who have or claim any interest which
would be affected thereby shall be made parties to
the proceeding.
SEC. 4. Notice and publication. Upon the filing of
the petition, the court shall, by an order, fix the time and
place for the hearing of the same, and cause reasonable
notice thereof to be given to the persons named in the
petition. The court shall also cause the order to be published

once in a week for three (3) consecutive weeks in a

newspaper of general circulation in the province.
SEC. 5. Opposition. The civil registrar and any
person having or claiming any interest under the entry
whose cancellation or correction is sought may, within
fifteen (15) days from notice of the petition, or from the last
date of publication of such notice, file his opposition thereto.
(Emphasis and underscoring supplied)
There is no dispute that the trial courts Order[19] setting the petition
for hearing and directing any person or entity having interest in the petition
to oppose it was posted[20] as well as published for the required period; that
notices of hearings were duly served on the Solicitor General, the city
prosecutor of Butuan and the local civil registrar; and that trial was
conducted on January 31, 2002 during which the public prosecutor, acting in
behalf of the OSG, actively participated by cross-examining Carlito and
Epifania.
What surfaces as an issue is whether the failure to implead Marivel
and Carlitos parents rendered the trial short of the required adversary
proceeding and the trial courts judgment void.
A similar issue was earlier raised in Barco v. Court of
Appeals.[21] That case stemmed from a petition for correction of entries in
the birth certificate of a minor, June Salvacion Maravilla, to reflect the name
of her real father (Armando Gustilo) and to correspondingly change her
surname. The petition was granted by the trial court.
Barco, whose minor daughter was allegedly fathered also by Gustilo,
however, sought to annul the trial courts decision, claiming that she should
have been made a party to the petition for correction. Failure to implead her
deprived the RTC of jurisdiction, she contended.
In dismissing Barcos petition, this Court held that the publication of
the order of hearing under Section 4 of Rule 108 cured the failure to implead
an indispensable party.
The essential requisite for allowing substantial
corrections of entries in the civil registry is that the true facts
be
established
in
an
appropriate
adversarial
proceeding. This is embodied in Section 3, Rule 108 of the
Rules of Court, which states:

Section 3. Parties. When cancellation or correction

of an entry in the civil register is sought, the civil registrar
and all persons who have or claim any interest which would
be affected thereby shall be made parties to the proceeding.
xxxx
Undoubtedly, Barco is among the parties referred to
in Section 3 of Rule 108. Her interest was affected by the
petition for correction, as any judicial determination that
June was the daughter of Armando would affect her wards
share in the estate of her father. x x x.
Yet, even though Barco was not impleaded in the
petition, the Court of Appeals correctly pointed out that the
defect was cured by compliance with Section 4, Rule 108,
which requires notice by publication x x x.
xxxx
The purpose precisely of Section 4, Rule 108 is to
bind the whole world to the subsequent judgment on the
petition. The sweep of the decision would cover even
parties who should have been impleaded under Section 3,
Rule 108, but were inadvertently left out. x x x
xxxx
Verily, a petition for correction is an action in rem,
an action against a thing and not against a person. The
decision on the petition binds not only the parties thereto
but the whole world. An in rem proceeding is validated
essentially through publication. Publication is notice to the
whole world that the proceeding has for its object to bar
indefinitely all who might be minded to make an objection of
any sort against the right sought to be established. It is the
publication of such notice that brings in the whole world as a
party in the case and vests the court with jurisdiction to hear
and decide it.[22]
Given the above ruling, it becomes unnecessary to rule on whether
Marivel or respondents parents should have been impleaded as parties to
the proceeding. It may not be amiss to mention, however, that during the

hearing on January 31, 2002, the city prosecutor who was acting as
representative of the OSG did not raise any objection to the non-inclusion of
Marivel and Carlitos parents as parties to the proceeding.
Parenthetically, it seems highly improbable that Marivel was unaware
of the proceedings to correct the entries in her childrens birth certificates,
especially since the notices, orders and decision of the trial court were all
sent to the residence[23] she shared with Carlito and the children.
It is also well to remember that the role of the court in hearing a
petition to correct certain entries in the civil registry is to ascertain the truth
about the facts recorded therein.[24]
With respect to the date of marriage of Carlito and Marivel, their
certificate of marriage[25] shows that indeed they were married on January
21, 2000, not onApril 27, 1989. Explaining the error, Carlito declared that
the date April 27, 1989 was supplied by his helper, adding that he was not
married to Marivel at the time his sons were born because his previous
marriage was annulled only in 1999.[26] Given the evidence presented by
respondents, the CA observed that the minors were illegitimate at birth,
hence, the correction would bring about no change at all in the nature of
their filiation.
With respect to Carlitos mother, it bears noting that she declared at
the witness stand that she was not married to Juan Kho who died in
1959.[27] Again, that testimony was not challenged by the city prosecutor.
The documentary evidence supporting the deletion from Carlitos and
his siblings birth certificates of the entry Married opposite the date of
marriage of their parents, moreover, consisted of a certification issued on
November 24, 1973 by St. Joseph (Butuan City) Parish priest Eugene van
Vught stating that Juan Kho and Epifania had been living together as
common law couple since 1935 but have never contracted marriage
legally.[28]
A certification from the office of the city registrar, which was
appended to respondents Amended Petition, likewise stated that it has no
record of marriage between Juan Kho and Epifania.[29] Under the
circumstances, the deletion of the word Married opposite the date of
marriage of parents is warranted.
With respect to the correction in Carlitos birth certificate of his name
from Carlito John to Carlito, the same was properly granted under Rule
108 of the Rules of Court. As correctly pointed out by the CA, the

cancellation or correction of entries involving changes of name falls under

letter o of the following provision of Section 2 of Rule 108:[30]
Section 2.
Entries subject to cancellation or
correction. Upon good and valid grounds, the following
entries in the civil register may be cancelled or corrected: (a)
births; (b) marriages; (c) deaths; (d) legal separation; (e)
judgments of annulment of marriage; (f) judgments
declaring marriages void from the beginning; (g)
legitimations; (h) adoptions; (i) acknowledgments of natural
children; (j) naturalization; (k) election, loss or recovery of
citizenship; (l) civil interdiction; (m) judicial determination of
filiation; (n) voluntary emancipation of a minor; and
(o) changes of name.
(Emphasis
and
underscoring
supplied)
Hence, while the jurisdictional requirements of Rule 103 (which
governs petitions for change of name) were not complied with, observance
of the provisions of Rule 108 suffices to effect the correction sought for.
More importantly, Carlitos official
the Urious College in Butuan City,[31] certificate
Service Commission,[32] and voter registration
that he has been known by his first name only.
arise from the dropping of the second name.

transcript of record from

of eligibility from the Civil
record[33] satisfactorily show
No prejudice is thus likely to

The correction of the mothers citizenship from Chinese to Filipino as

appearing in Carlitos birth record was also proper. Of note is the fact that
during the cross examination by the city prosecutor of Epifania, he did not
deem fit to question her citizenship. Such failure to oppose the correction
prayed for, which certainly was not respondents fault, does not in any way
change the adversarial nature of the proceedings.
Also significant to note is that the birth certificates of Carlitos
siblings uniformly stated the citizenship of Epifania as Filipino. To disallow
the correction in Carlitos birth record of his mothers citizenship would
perpetuate an inconsistency in the natal circumstances of the siblings who
are unquestionably born of the same mother and father.
Outside the ambit of substantial corrections, of course, is the
correction of the name of Carlitos wife from Maribel to Marivel. The
mistake is clearly clerical or typographical, which is not only visible to the

eyes, but is also obvious to the understanding[34] considering that the name
reflected in the marriage certificate of Carlito and his wife is Marivel.
Apropos is Yu v. Republic[35] which held that changing the appellants
Christian name of Sincio to Sencio amounts merely to the righting of a
clerical error. The change of name from Beatriz Labayo/Beatriz Labayu to
Emperatriz Labayo was also held to be a mere innocuous alteration, which
can be granted through a summary proceeding.[36] The same ruling holds
true with respect to the correction in Carlitos marriage certificate of his
fathers name from John Kho to Juan Kho. Except in said marriage
certificate, the name Juan Kho was uniformly entered in the birth
certificates of Carlito and of his siblings.[37]
WHEREFORE, the Petition is DENIED. The Decision of the Court
of Appeals is AFFIRMED.
SO ORDERED.

G.R. No. 157043

February 2, 2007

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
TRINIDAD R.A. CAPOTE, Respondent.
DECISION
CORONA, J.:
This petition for review on certiorari1 seeks to set aside the Court of Appeals
(CA) decision2 dated January 13, 2003 in CA-G.R. CV No. 66128, which
affirmed the decision of the Regional Trial Court (RTC), Branch 23 of San
Juan, Southern Leyte dated September 14, 1999 granting a petition for
change of name.
Respondent Trinidad R. A. Capote filed a petition for change of name of her
ward from Giovanni N. Gallamaso toGiovanni Nadores on September 9, 1998.
In Special Proceeding No. R-481,3 Capote as Giovannis guardian ad
litem averred:
xxx xxx xxx
1. [Respondent] is a Filipino citizen, of legal age, married, while
minor GIOVANNI N. GALLAMASO, is also a Filipino citizen, sixteen
(16) years old and both are residents of San Juan, Southern Leyte
where they can be served with summons and other court processes;
2. [Respondent] was appointed guardian [ad litem] of minor
Giovanni N. Gallamaso by virtue of a court order in Special [Proc.]
No. R-459, dated [August 18, 1998] xxx xxx authorizing her to file in
court a petition for change of name of said minor in accordance with
the desire of his mother [who is residing and working abroad];
3. Both [respondent] and minor have permanently resided in San
Juan, Southern Leyte, Philippines for more than fifteen (15) years
prior to the filing of this instant petition, the former since 1970 while
the latter since his birth [in 1982];
4. The minor was left under the care of [respondent] since he was
yet nine (9) years old up to the present;

5. Minor GIOVANNI N. GALLAMASO is the illegitimate natural child of

Corazon P. Nadores and Diosdado Gallamaso. [He] was born on July
9, 1982 [,] prior to the effectivity of the New Family Code and as
such, his mother used the surname of the natural father despite the
absence of marriage between them; and [Giovanni] has been known
by that name since birth [as per his birth certificate registered at the
Local Civil Register of San Juan, Southern Leyte];
6. The father, Diosdado Gallamaso, from the time [Giovanni] was
born and up to the present, failed to take up his responsibilities [to
him] on matters of financial, physical, emotional and spiritual
concerns. [Giovannis pleas] for attention along that line [fell] on
deaf ears xxx xxx xxx;
7. [Giovanni] is now fully aware of how he stands with his father and
he desires to have his surname changed to that of his mothers
surname;
8. [Giovannis] mother might eventually petition [him] to join her in
the United States and [his] continued use of the surname Gallamaso,
the surname of his natural father, may complicate [his] status as
natural child; and
9. The change of name [from] GIOVANNI N. GALLAMASO to
GIOVANNI NADORES will be for the benefit of the minor.
xxx xxx xxx4
Respondent prayed for an order directing the local civil registrar to effect the
change of name on Giovannis birth certificate. Having found respondents
petition sufficient in form and substance, the trial court gave due course to
the petition.5 Publication of the petition in a newspaper of general circulation
in the province of Southern Leyte once a week for three consecutive weeks
was likewise ordered.6 The trial court also directed that the local civil
registrar be notified and that the Office of the Solicitor General (OSG) be
sent a copy of the petition and order.7
Since there was no opposition to the petition, respondent moved for leave of
court to present her evidence ex parte before a court-appointed
commissioner. The OSG, acting through the Provincial Prosecutor, did not
object; hence, the lower court granted the motion.

After the reception of evidence, the trial court rendered a decision ordering
the change of name from Giovanni N. Gallamaso to Giovanni Nadores.8
From this decision, petitioner Republic of the Philippines, through the OSG,
filed an appeal with a lone assignment of error: the court a quo erred in
granting the petition in a summary proceeding.
Ruling that the proceedings were sufficiently adversarial in nature as
required, the CA affirmed the RTC decision ordering the change of name.9
In this petition, the Republic contends that the CA erred in affirming the trial
courts decision which granted the petition for change of name despite the
non-joinder of indispensable parties.10 Petitioner cites Republic of the
Philippines v. Labrador11 and claims that the purported parents and all other
persons who may be adversely affected by the childs change of name should
have been made respondents to make the proceeding adversarial.12
We deny the petition.
"The subject of rights must have a fixed symbol for individualization which
serves to distinguish him from all others; this symbol is his
name."13 Understandably, therefore, no person can change his name or
surname without judicial authority.14 This is a reasonable requirement for
those seeking such change because a persons name necessarily affects his
identity, interests and interactions. The State must be involved in the process
and decision to change the name of any of its citizens.
The Rules of Court provides the requirements and procedure for change of
name. Here, the appropriate remedy is covered by Rule 103,15 a separate
and distinct proceeding from Rule 108 on mere cancellation and correction of
entries in the civil registry (usually dealing only with innocuous or clerical
errors thereon).16
The issue of non-joinder of alleged indispensable parties in the action before
the court a quo is intertwined with the nature of the proceedings there. The
point is whether the proceedings were sufficiently adversarial.
Summary proceedings do not extensively address the issues of a case since
the reason for their conduct is expediency. This, according to petitioner, is
not sufficient to deal with substantial or contentious issues allegedly resulting
from a change of name, meaning, legitimacy as well as successional
rights.17 Such issues are ventilated only in adversarial proceedings wherein
all interested parties are impleaded and due process is observed.18

When Giovanni was born in 1982 (prior to the enactment and effectivity of
the Family Code of the Philippines),19the pertinent provision of the Civil Code
then as regards his use of a surname, read:
Art. 366. A natural child acknowledged by both parents shall principally use
the surname of the father. If recognized by only one of the parents, a
natural child shall employ the surname of the recognizing parent.
(emphasis ours)
Based on this provision, Giovanni should have carried his mothers surname
from birth. The records do not reveal any act or intention on the part of
Giovannis putative father to actually recognize him. Meanwhile, according to
the Family Code which repealed, among others, Article 366 of the Civil Code:
Art. 176. Illegitimate children shall use the surname and shall be under
the parental authority of their mother, and shall be entitled to support in
conformity with this Code. xxx xxx xxx (emphasis ours)
Our ruling in the recent case of In Re: Petition for Change of Name and/or
Correction/Cancellation of Entry in Civil Registry of Julian Lin Carulasan
Wang20 is enlightening:
Our laws on the use of surnames state that legitimate and legitimated
children shall principally use the surname of the father. The Family Code
gives legitimate children the right to bear the surnames of the father and the
mother, while illegitimate children shall use the surname of their mother,
unless their father recognizes their filiation, in which case they may bear the
fathers surname.
Applying these laws, an illegitimate child whose filiation is not
recognized by the father bears only a given name and his mother
surname, and does not have a middle name. The name of the
unrecognized illegitimate child therefore identifies him as such. It is
only when the illegitimate child is legitimated by the subsequent marriage of
his parents or acknowledged by the father in a public document or private
handwritten instrument that he bears both his mothers surname as his
middle name and his fathers surname as his surname, reflecting his status
as a legitimated child or an acknowledged child.1awphi1.net21
The foregoing discussion establishes the significant connection of a persons
name to his identity, his status in relation to his parents and his successional
rights as a legitimate or illegitimate child. For sure, these matters should not

be taken lightly as to deprive those who may, in any way, be affected by the
right to present evidence in favor of or against such change.
The law and facts obtaining here favor Giovannis petition. Giovanni availed
of the proper remedy, a petition for change of name under Rule 103 of the
Rules of Court, and complied with all the procedural requirements. After
hearing, the trial court found (and the appellate court affirmed) that the
evidence presented during the hearing of Giovannis petition sufficiently
established that, under Art. 176 of the Civil Code, Giovanni is entitled to
change his name as he was never recognized by his father while his mother
has always recognized him as her child. A change of name will erase the
impression that he was ever recognized by his father. It is also to his best
interest as it will facilitate his mothers intended petition to have him join her
in the United States. This Court will not stand in the way of the reunification
of mother and son.
Moreover, it is noteworthy that the cases cited by petitioner22 in support of
its position deal with cancellation or correction of entries in the civil registry,
a proceeding separate and distinct from the special proceedings for change
of name. Those cases deal with the application and interpretation of Rule
108 of the Rules of Court while this case was correctly filed under Rule 103.
Thus, the cases cited by petitioner are irrelevant and have no bearing on
respondents case. While the OSG is correct in its stance that the
proceedings for change of name should be adversarial, the OSG cannot void
the proceedings in the trial court on account of its own failure to participate
therein. As the CA correctly ruled:
The OSG is correct in stating that a petition for change of name must be
heard in an adversarial proceeding. Unlike petitions for the cancellation or
correction of clerical errors in entries in the civil registry under Rule 108 of
the Rules of Court, a petition for change of name under Rule 103 cannot be
decided through a summary proceeding. There is no doubt that this petition
does not fall under Rule 108 for it is not alleged that the entry in the civil
registry suffers from clerical or typographical errors. The relief sought clearly
goes beyond correcting erroneous entries in the civil registry, although by
granting the petition, the result is the same in that a corresponding change
in the entry is also required to reflect the change in name. In this regard,
[appellee] Capote complied with the requirement for an adversarial
proceeding by posting in a newspaper of general circulation notice
of the filing of the petition. The lower court also furnished the OSG
a copy thereof. Despite the notice, no one came forward to oppose
the petition including the OSG. The fact that no one opposed the
petition did not deprive the court of its jurisdiction to hear the
same nor does it make the proceeding less adversarial in

nature. The lower court is still expected to exercise its judgment to

determine whether the petition is meritorious or not and not merely accept
as true the arguments propounded. Considering that the OSG neither
opposed the petition nor the motion to present its evidence ex parte when it
had the opportunity to do so, it cannot now complain that the proceedings in
the lower court were not adversarial enough.23 (emphasis supplied)
A proceeding is adversarial where the party seeking relief has given legal
warning to the other party and afforded the latter an opportunity to contest
it.24 Respondent gave notice of the petition through publication as required
by the rules.25 With this, all interested parties were deemed notified and the
whole world considered bound by the judgment therein. In addition, the trial
court gave due notice to the OSG by serving a copy of the petition on it.
Thus, all the requirements to make a proceeding adversarial were satisfied
when all interested parties, including petitioner as represented by the OSG,
were afforded the opportunity to contest the petition.
WHEREFORE, the petition is hereby DENIED and the January 13, 2003
decision of the Court of Appeals in CA-G.R. CV No. 66128 AFFIRMED.
SO ORDERED.

[G.R. No. 159966. March 30, 2005]

IN

RE:
PETITION
FOR
CHANGE
OF
NAME
AND/OR
CORRECTION/CANCELLATION
OF
ENTRY
IN
CIVIL
REGISTRY OF JULIAN LIN CARULASAN WANG also known as
JULIAN LIN WANG, to be amended/corrected as JULIAN LIN
WANG, JULIAN LIN WANG, duly represented by his mother
ANNA LISA WANG, petitioner, vs. CEBU CITY CIVIL
REGISTRAR, duly represented by the Registrar OSCAR B.
MOLO, respondent.
DECISION

TINGA, J.:
I will not blot out his name out of the book of life.

Revelation 3:5
On 22 September 2002, petitioner Julian Lin Carulasan Wang, a minor,
represented by his mother Anna Lisa Wang, filed a petition dated 19
September 2002 for change of name and/or correction/cancellation of entry
in the Civil Registry of Julian Lin Carulasan Wang. Petitioner sought to drop
his middle name and have his registered name changed from Julian Lin
Carulasan Wang to Julian Lin Wang.
The petition was docketed as Special Proceedings Case No. 11458 CEB
and raffled to the Regional Trial Court (RTC) of Cebu City, Branch 57.
The RTC established the following facts:
Julian Lin Carulasan Wang was born in Cebu City on February 20, 1998 to
parents Anna Lisa Wang and Sing-Foe Wang who were then not yet married
to each other. When his parents subsequently got married on September
22, 1998, ...they executed a deed of legitimation of their son so that the
childs name was changed from Julian Lin Carulasan to Julian Lin Carulasan
Wang.
The parents of Julian Lin Carulasan Wang plan to stay in Singapore for a long
time because they will let him study there together with his sister named
Wang Mei Jasmine who was born in Singapore. Since in Singapore middle
names or the maiden surname of the mother are not carried in a persons

name, they anticipate that Julian Lin Carulasan Wang will be discriminated
against because of his current registered name which carries a middle
name. Julian and his sister might also be asking whether they are brother
and sister since they have different surnames. Carulasan sounds funny in
Singapores Mandarin language since they do not have the letter R but if
there is, they pronounce it as L. It is for these reasons that the name of
Julian Lin Carulasan Wang is requested to be changed to Julian Lin Wang.[1]
On 30 April 2003, the RTC rendered a decision denying the
petition.[2] The trial court found that the reason given for the change of
name sought in the petitionthat is, that petitioner Julian may be
discriminated against when studies in Singapore because of his middle
namedid not fall within the grounds recognized by law. The trial court
ruled that the change sought is merely for the convenience of the
child. Since the State has an interest in the name of a person, names cannot
be changed to suit the convenience of the bearers. Under Article 174 of the
Family Code, legitimate children have the right to bear the surnames of the
father and the mother, and there is no reason why this right should now be
taken from petitioner Julian, considering that he is still a minor. The trial
court added that when petitioner Julian reaches the age of majority, he could
then decide whether he will change his name by dropping his middle
name.[3]
Petitioner filed a motion for reconsideration of the decision but this was
denied in a resolution dated 20 May 2004.[4] The trial court maintained that
the Singaporean practice of not carrying a middle name does not justify the
dropping of the middle name of a legitimate Filipino child who intends to
study there. The dropping of the middle name would be tantamount to
giving due recognition to or application of the laws of Singapore instead of
Philippine law which is controlling. That the change of name would not
prejudice public interest or would not be for a fraudulent purpose would not
suffice to grant the petition if the reason for the change of name is itself not
reasonable.[5]
Petitioner then filed this Petition for Review on Certiorari (Under Rule
45)[6] arguing that the trial court has decided a question of substance not
theretofore determined by the Court, that is: whether or not dropping the
middle name of a minor child is contrary to Article 174[7] of the Family
Code. Petitioner contends that [W]ith globalization and mixed marriages,
there is a need for the Supreme Court to rule on the matter of dropping of
family name for a child to adjust to his new environment, for consistency and
harmony among siblings, taking into consideration the best interest of the
child.[8] It is argued that convenience of the child is a valid reason for
changing the name as long as it will not prejudice the State and
others. Petitioner points out that the middle name Carulasan will cause

him undue embarrassment and the difficulty in writing or pronouncing it will

be an obstacle to his social acceptance and integration in the Singaporean
community. Petitioner also alleges that it is error for the trial court to have
denied the petition for change of name until he had reached the age of
majority for him to decide the name to use, contrary to previous
cases[9] decided by this Court that allowed a minor to petition for change of
name.[10]
The Court required the Office of the Solicitor General (OSG) to comment
on the petition. The OSG filed its Comment[11] positing that the trial court
correctly denied the petition for change of name. The OSG argues that
under Article 174 of the Family Code, legitimate children have the right to
bear the surnames of their father and mother, and such right cannot be
denied by the mere expedient of dropping the same. According to the OSG,
there is also no showing that the dropping of the middle name Carulasan is
in the best interest of petitioner, since mere convenience is not sufficient to
support a petition for change of name and/or cancellation of entry.[12] The
OSG also adds that the petitioner has not shown any compelling reason to
justify the change of name or the dropping of the middle name, for that
matter. Petitioners allegation that the continued use of the middle name
may result in confusion and difficulty is allegedly more imaginary than
real. The OSG reiterates its argument raised before the trial court that the
dropping of the childs middle name could only trigger much deeper inquiries
regarding the true parentage of petitioner. Hence, while petitioner Julian
has a sister named Jasmine Wei Wang, there is no confusion since both use
the surname of their father, Wang. Even assuming that it is customary in
Singapore to drop the middle name, it has also not been shown that the use
of such middle name is actually proscribed by Singaporean law.[13]
We affirm the decision of the trial court. The petition should be denied.
The Court has had occasion to express the view that the State has an
interest in the names borne by individuals and entities for purposes of
identification, and that a change of name is a privilege and not a right, so
that before a person can be authorized to change his name given him either
in his certificate of birth or civil registry, he must show proper or reasonable
cause, or any compelling reason which may justify such change. Otherwise,
the request should be denied.[14]
The touchstone for the grant of a change of name is that there be
proper and reasonable cause for which the change is sought.[15] To justify a
request for change of name, petitioner must show not only some proper or
compelling reason therefore but also that he will be prejudiced by the use of
his true and official name. Among the grounds for change of name which
have been held valid are: (a) when the name is ridiculous, dishonorable or
extremely difficult to write or pronounce; (b) when the change results as a

legal consequence, as in legitimation; (c) when the change will avoid

confusion; (d) when one has continuously used and been known since
childhood by a Filipino name, and was unaware of alien parentage; (e) a
sincere desire to adopt a Filipino name to erase signs of former alienage, all
in good faith and without prejudicing anybody; and (f) when the surname
causes embarrassment and there is no showing that the desired change of
name was for a fraudulent purpose or that the change of name would
prejudice public interest.[16]
In granting or denying petitions for change of name, the question of
proper and reasonable cause is left to the sound discretion of the court. The
evidence presented need only be satisfactory to the court and not all the
best evidence available. What is involved is not a mere matter of allowance
or disallowance of the request, but a judicious evaluation of the sufficiency
and propriety of the justifications advanced in support thereof, mindful of the
consequent results in the event of its grant and with the sole prerogative for
making such determination being lodged in the courts.[17]
The petition before us is unlike other petitions for change of name, as it
does not simply seek to change the name of the minor petitioner and adopt
another, but instead seeks to drop the middle name altogether. Decided
cases in this jurisdiction involving petitions for change of name usually deal
with requests for change of surname. There are only a handful of cases
involving requests for change of the given name[18] and none on requests for
changing or dropping of the middle name. Does the law allow one to drop
the middle name from his registered name? We have to answer in the
negative.
A discussion on the legal significance of a persons name is relevant at
this point. We quote, thus:
For all practical and legal purposes, a man's name is the designation by
which he is known and called in the community in which he lives and is best
known. It is defined as the word or combination of words by which a person
is distinguished from other individuals and, also, as the label or appellation
which he bears for the convenience of the world at large addressing him, or
in speaking of or dealing with him. Names are used merely as one method of
indicating the identity of persons; they are descriptive of persons for
identification, since, the identity is the essential thing and it has frequently
been held that, when identity is certain, a variance in, or misspelling of, the
name is immaterial.
The names of individuals usually have two parts: the given name or proper
name, and the surname or family name. The given or proper name is that
which is given to the individual at birth or baptism, to distinguish him from

other individuals. The name or family name is that which identifies the family
to which he belongs and is continued from parent to child. The given name
may be freely selected by the parents for the child; but the surname to
which the child is entitled is fixed by law.
A name is said to have the following characteristics: (1) It is absolute,
intended to protect the individual from being confused with others. (2) It is
obligatory in certain respects, for nobody can be without a name. (3) It is
fixed, unchangeable, or immutable, at least at the start, and may be
changed only for good cause and by judicial proceedings. (4) It is outside the
commerce of man, and, therefore, inalienable and intransmissible by
act inter vivos or mortis causa. (5) It is imprescriptible.[19]
This citation does not make any reference to middle names, but this
does not mean that middle names have no practical or legal
significance. Middle names serve to identify the maternal lineage or filiation
of a person as well as further distinguish him from others who may have the
same given name and surname as he has.
Our laws on the use of surnames state that legitimate and legitimated
children shall principally use the surname of the father.[20] The Family Code
gives legitimate children the right to bear the surnames of the father and the
mother,[21] while illegitimate children shall use the surname of their mother,
unless their father recognizes their filiation, in which case they may bear the
fathers surname.[22]
Applying these laws, an illegitimate child whose filiation is not
recognized by the father bears only a given name and his mothers surname,
and does not have a middle name. The name of the unrecognized
illegitimate child therefore identifies him as such. It is only when the
illegitimate child is legitimated by the subsequent marriage of his parents or
acknowledged by the father in a public document or private handwritten
instrument that he bears both his mothers surname as his middle name and
his fathers surname as his surname, reflecting his status as a legitimated
child or an acknowledged illegitimate child.
Accordingly, the registration in the civil registry of the birth of such
individuals requires that the middle name be indicated in the certificate. The
registered name of a legitimate, legitimated and recognized illegitimate child
thus contains a given or proper name, a middle name, and a surname.
Petitioner theorizes that it would be for his best interest to drop his
middle name as this would help him to adjust more easily to and integrate
himself into Singaporean society. In support, he cites Oshita v.
Republic[23] and Calderon v. Republic,[24] which, however, are not apropos
both.

In Oshita, the petitioner therein, a legitimate daughter of a Filipino

mother, Buena Bartolome, and a Japanese father, Kishimatsu Oshita, sought
to change her name from Antonina B. Oshita to Antonina Bartolome. The
Court granted her petition based on the following considerations: she had
elected Philippine citizenship upon reaching the age of majority; her other
siblings who had also elected Philippine citizenship have been using their
mothers surname; she was embarrassed to bear a Japanese surname there
still being ill feeling against the Japanese due to the last World War; and
there was no showing that the change of name was motivated by a
fraudulent purpose or that it will prejudice public interest.
In Calderon, the Court allowed petitioner Gertrudes Josefina del Prado,
an illegitimate minor child acting through her mother who filed the petition in
her behalf, to change her name to Gertudes Josefina Calderon, taking the
surname of her stepfather, Romeo C. Calderon, her mothers husband. The
Court held that a petition for change of name of an infant should be granted
where to do is clearly for the best interest of the child. The Court took into
consideration the opportunity provided for the minor petitioner to eliminate
the stigma of illegitimacy which she would carry if she continued to use the
surname of her illegitimate father. The Court pronounced that justice
dictates that every person be allowed to avail of any opportunity to improve
his social standing as long as doing so he does not cause prejudice or injury
to the interests of the State or of other people.
Petitioner cites Alfon v. Republic,[25] in arguing that although Article 174
of the Family Code gives the legitimate child the right to use the surnames of
the father and the mother, it is not mandatory such that the child could use
only one family name, even the family name of the mother. In Alfon, the
petitioner therein, the legitimate daughter of Filomeno Duterte and Estrella
Alfon, sought to change her name from Maria Estrella Veronica Primitiva
Duterte (her name as registered in the Local Civil Registry) to Estrella S.
Alfon (the name she had been using since childhood, in her school records
and in her voters registration). The trial court denied her petition but this
Court overturned the denial, ruling that while Article 364 of the Civil Code
states that she, as a legitimate child, should principally use the surname of
her father, there is no legal obstacle for her to choose to use the surname of
herm other to which she is entitled. In addition, the Court found that there
was ample justification to grant her petition, i.e., to avoid confusion.
Weighing petitioners reason of convenience for the change of his name
against the standards set in the cases he cites to support his contention
would show that his justification is amorphous, to say the least, and could
not warrant favorable action on his petition.
The factual antecedents and unique circumstances of the cited cases
are not at all analogous to the case at bar. The instant case is clearly

distinguishable from the cases of Oshitaand Alfon, where the petitioners

were already of age when they filed their petitions for change of name.
Being of age, they are considered to have exercised their discretion and
judgment, fully knowing the effects of their decision to change their
surnames. It can also be unmistakably observed that the reason for the
grant of the petitions for change of name in these two cases was the
presence of reasonable or compelling grounds therefore. The Court,
in Oshita, recognized the tangible animosity most Filipinos had during that
time against the Japanese as a result of World War II, in addition to the fact
of therein petitioners election of Philippine citizenship. In Alfon, the Court
granted the petition since the petitioner had been known since childhood by
a name different from her registered name and she had not used her
registered name in her school records and voters registration records; thus,
denying the petition would only result to confusion.

Calderon, on the other hand, granted the petition for change of name
filed by a mother in behalf of her illegitimate minor child. Petitioner cites this
case to buttress his argument that he does not have to reach the age of
majority to petition for change of name. However, it is manifest
in Calderon that the Court, in granting the petition for change of name, gave
paramount consideration to the best interests of the minor petitioner therein.
In the case at bar, the only reason advanced by petitioner for the
dropping his middle name is convenience. However, how such change of
name would make his integration into Singaporean society easier and
convenient is not clearly established. That the continued use of his middle
name would cause confusion and difficulty does not constitute proper and
reasonable cause to drop it from his registered complete name.
In addition, petitioner is only a minor. Considering the nebulous
foundation on which his petition for change of name is based, it is best that
the matter of change of his name be left to his judgment and discretion
when he reaches the age of majority.[26] As he is of tender age, he may not
yet understand and appreciate the value of the change of his name and
granting of the same at this point may just prejudice him in his rights under
our laws.
WHEREFORE, in view of the foregoing, the Petition for Review on
Certiorari is DENIED.
SO ORDERED.

[G.R. No. 118387. October 11, 2001]

MARCELO LEE, ALBINA LEE-YOUNG, MARIANO LEE, PABLO LEE,

HELEN LEE, CATALINO K. LEE, EUSEBIO LEE, EMMA LEE, and
TIU CHUAN,petitioners, vs. COURT OF APPEALS and HON.
LORENZO B. VENERACION and HON. JAIME T. HAMOY, in
their capacities as Presiding Judge of Branch 47, Regional
Trial Court of Manila and Branch 130, Regional Trial Court of
Kalookan City, respectively and RITA K. LEE, LEONCIO LEE
TEK SHENG in their personal capacities and ROSA K. LEEVANDERLEK, MELODY K. LEE-CHIN, LUCIA K. LEE TEK
SHENG, JULIAN K. LEE, HENRY K. LEE, MARTIN K. LEE,
VICTORIANO K. LEE, NATIVIDAD K. LEE-MIGUEL, and
THOMAS K. LEE, represented by RITA K. LEE, respondents.
DECISION
DE LEON, JR., J.:
This Petition for Review on Certiorari, with Prayer for the Issuance of a
Temporary Restraining Order and/or Writ of Preliminary Injunction, seeks the
reversal of the Decision[1] of the Court of Appeals dated October 28, 1994 in
CA-G.R. SP NO. 31786[2]. The assailed decision of the Court of Appeals
upheld the Orders issued by respondents Judges Hon. Lorenzo B.
Veneracion[3] and Hon. Jaime T. Hamoy[4] taking cognizance of two (2)
separate petitions filed by private respondents before their respective salas
for the cancellation and/or correction of entries in the records of birth of
petitioners pursuant to Rule 108 of the Revised Rules of Court.
This is a story of two (2) sets of children sired by one and the same
man but begotten of two (2) different mothers. One set, the private
respondents herein, are the children of Lee Tek Sheng and his lawful wife,
Keh Shiok Cheng. The other set, the petitioners herein, are allegedly
children of Lee Tek Sheng and his concubine, Tiu Chuan.
Rita K. Lee, Leoncio Lee Tek Sheng, Rosa K. Lee-Vanderlek, Melody K.
Lee-Chin, Lucia K. Lee Tek Sheng-Ong, Julian K. Lee, Henry K. Lee, Martin K.
Lee, Victoriano K. Lee, Natividad K. Lee-Miguel and Thomas K. Lee
(hereinafter referred to as private respondents) filed two (2) separate
petitions for the cancellation and/or correction of entries in the records of
birth of Marcelo Lee, Albina Lee-Young, Mariano Lee, Pablo Lee, Helen Lee,
Catalino K. Lee, Eusebio Lee, and Emma Lee (hereinafter referred to as
petitioners). On December 2, 1992, the petition against all petitioners, with

the exception of Emma Lee, was filed before the Regional Trial Court (RTC)
of Manila and docketed as SP. PROC. NO. 92-63692[5] and later assigned to
Branch 47 presided over by respondent Judge Lorenzo B. Veneracion. On
February 3, 1993, a similar petition against Emma Lee was filed before the
RTC of Kalookan and docketed as SP. PROC. NO. C-1674[6] and assigned to
the sala of respondent Judge Jaime T. Hamoy of Branch 130.
Both petitions sought to cancel and/or correct the false and erroneous
entries in all pertinent records of birth of petitioners by deleting and/or
canceling therein the name of Keh Shiok Cheng as their mother, and by
substituting the same with the name Tiu Chuan, who is allegedly the
petitioners true birth mother.
The private respondents alleged in their petitions before the trial courts
that they are the legitimate children of spouses Lee Tek Sheng and Keh
Shiok Cheng who were legally married in China sometime in 1931. Except
for Rita K. Lee who was born and raised in China, private respondents herein
were all born and raised in the Philippines.
Sometime in October, 1948, Lee Tek Sheng, facilitated the arrival in the
Philippines from China of a young girl named Tiu Chuan. She was introduced
by Lee Tek Sheng to his family as their new housemaid but far from
becoming their housemaid, Tiu Chuan immediately became Lee Tek Shengs
mistress. As a result of their illicit relations, Tiu Chuan gave birth to
petitioners.
Unknown to Keh Shiok Cheng and private respondents, every time Tiu
Chuan gave birth to each of the petitioners, their common father, Lee Tek
Sheng, falsified the entries in the records of birth of petitioners by making it
appear that petitioners mother was Keh Shiok Cheng.
Since the birth of petitioners, it was Tiu Chuan who gave maternal care
and guidance to the petitioners. They all lived in the same compound Keh
Shiok Cheng and private respondents were residing in. All was well,
therefore, before private respondents discovery of the dishonesty and fraud
perpetrated by their father, Lee Tek Sheng.
The tides turned after Keh Shiok Chengs demise on May 9, 1989. Lee
Tek Sheng insisted that the names of all his children, including those of
petitioners, be included in the obituary notice of Keh Shiok Chengs death
that was to be published in the newspapers. It was this seemingly irrational
act that piqued private respondents curiosity, if not suspicion.[7]
Acting on their suspicion, the private respondents requested the
National Bureau of Investigation (NBI) to conduct an investigation into the
matter. After investigation and verification of all pertinent records, the NBI

prepared a report that pointed out, among others, the false entries in the
records of birth of petitioners, specifically the following:
1. As per Birth Certificate of MARCELO LEE (Annex F-1), their
father, LEE TEK SHENG made it appear that he is the 12th child
of Mrs. KEH SHIOK CHENG, but upon investigation, it was found
out that her Hospital Records, the mother who gave birth to
MARCELO LEE had given birth for the 1st time, as per diagnosis
of the attending physician, Dr. R. LIM, it was GRAVIDA I, PARA
I which means first pregnancy, first live birth delivery (refer
to: MASTER PATIENTS RECORDS SUMMARY Annex I). Also,
the age of the mother when she gave birth to MARCELO LEE as
per record was only 17 years old, when in fact and in truth, KEH
SHIOK CHENGs age was then already 38 years old. The
address used by their father in the Master Patient record was
also the same as the Birth Certificate of MARCELO LEE (2425
Rizal Avenue, Manila). The name of MARCELO LEE was
recorded under Hospital No. 221768, page 73.
2. As per Birth Certificate of ALBINA LEE (Annex F-2), it was made
to appear that ALBINA LEE was the third child which is without
any rationality, because the 3rd child of KEH SHIOK CHENG is
MELODY LEE TEK SHENG (Annex E-2). Note also, that the age
of the mother as per Hospital Records jump (sic) from 17 to 22
years old, but the only age gap of MARCELO LEE and ALBINA
LEE is only 2 years.
3. As per Birth Certificate of MARIANO LEE (Annex F-3), it was
made to appear that MARIANO LEE was the 5th child, but the
truth is, KEH SHIOK CHENGs 5th child is LUCIA LEE TEK SHENG
(Annex E-4). As per Hospital Record, the age of KEH SHIOK
CHENG was only 23 years old, while the actual age of KEH
SHIOK CHENG, was then already 40 years old.
4. As per Birth Certificate of PABLO LEE (Annex F-4), it was made
to appear that PABLO LEE was the 16th child of KEH SHIOK
CHENG which is impossible to be true, considering the fact that
KEH SHIOK CHENG have stopped conceiving after her
11th child. Also as per Hospital Record, the age of the mother
was omitted in the records. If PABLO LEE is the 16th child of
KEH SHIOK CHENG, it would only mean that she have (sic)
given birth to her first born child at the age of 8 to 9 years,
which is impossible to be true.
Based on the birth record of MARIANO LEE in 1953, the
recorded age of KEH SHIOK CHENG was 23 years old. Two

years after PABLO LEE was born in 1955, the difference is only
2 years, so it is impossible for PABLO LEE to be the 16th child of
KEH SHIOK CHENG, as it will only mean that she have (sic)
given birth at that impossible age.
5. As per Birth Certificate of HELEN LEE (Annex F-5), it was made
to appear that she is the 6th child of KEH SHIOK CHENG, but as
per Birth Certificate of JULIAN LEE (Annex E-5), he is the true
6th child of KEH SHIOK CHENG. Per Hospital Record, KEH
SHIOK CHENG is only 28 years old, while KEH SHIOK CHENGS
true age at that time was 45 years old.
6. EMMA LEE has no record in the hospital because, as per
complainants allegation, she was born at their house, and was
later admitted at Chinese General Hospital.
7. As per Birth Certificate of CATALINO LEE (Annex F-7), it was
made to appear that he is the 14th child of KEH SHIOK CHENG,
and that the age of KEH SHIOK CHENG a.k.a. Mrs. LEE TEK
SHENG, jumped from 28 years old at the birth of HELEN LEE on
23 August 1957 to 38 years old at the birth of CATALINO LEE
on 22 April 1959.
8. As per Birth Certificate of EUSEBIO LEE, the alleged last son of
KEH SHIOK CHENG, the age of the mother is 48 years
old. However, as per Hospital Record, the age of Mrs. LEE TEK
SHENG, then was only 39 years old. Considering the fact, that
at the time of MARCELOs birth on 11 May 1950. KEH SHIOK
CHENGs age is 38 years old and at the time of EUSEBIOs birth,
she is already 48 years old, it is already impossible that she
could have given birth to 8 children in a span of only 10 years
at her age. As per diagnosis, the alleged mother registered on
EUSEBIOs birth indicate that she had undergone CEASARIAN
SECTION, which Dr. RITA K. LEE said is not true.
In view of the foregoing facts, the NBI concluded that:
10.

In conclusion, as per Chinese General Hospital

Patients Records, it is very obvious that the mother of
these 8 children is certainly not KEH SHIOK CHENG, but
a much younger woman, most probably TIU
CHUAN. Upon further evaluation and analysis by these
Agents, LEE TEK SHENG, is in a quandary in fixing the
age of KEH SHIOK CHENG possibly to conform with his
grand design of making his 8 children as their own
legitimate children, consequently elevating the status of

his 2nd family and secure their future. The doctor

lamented that this complaint would not have been
necessary had not the father and his 2nd family kept on
insisting that the 8 children are the legitimate children
of KEH SHIOK CHENG.[8]
It was this report that prompted private respondents to file the petitions
for cancellation and/or correction of entries in petitioners records of birth
with the lower courts.
The petitioners filed a motion to dismiss both petitions - SP. PROC. NO.
92-63692 and SP. PROC. NO. C-1674 - on the grounds that: (1) resort to
Rule 108 is improper where the ultimate objective is to assail the legitimacy
and filiation of petitioners; (2) the petition, which is essentially an action to
impugn legitimacy was filed prematurely; and (3) the action to impugn has
already prescribed.[9]
On February 12, 1993, respondent Judge Veneracion denied the motion
to dismiss SP. PROC. NO. 92-63692 for failure of the herein petitioners
(defendants in the lower court) to appear at the hearing of the said
motion.[10] Then on February 17, 1993, Judge Veneracion issued an Order,
the pertinent portion of which, reads as follows:
Finding the petition to be sufficient in form and substance, the same is
hereby given due course. Let this petition be set for hearing on March 29,
1993 at 8:30 in the morning before this Court located at the 5th Floor of the
City Hall of Manila.
Notice is hereby given that anyone who has any objection to the petition
should file on or before the date of hearing his opposition thereto with a
statement of the grounds therefor.
Let a copy of this Order be published, at the expense of the petitioners, once
a week for three (3) consecutive weeks in a newspaper of general circulation
in the Philippines.
Let copies of the verified petition with its annexes and of this Order be
served upon the Office of the Solicitor General, and the respondents, and be
posted on the Bulletin Board of this Court, also at the expense of the
petitioners.
SO ORDERED.[11]

On the other hand, respondent Judge Hamoy issued an Order dated

April 15, 1993 taking cognizance of SP. PROC. No. C-1674, to wit:
It appearing from the documentary evidence presented and marked by the
petitioners that the Order of the Court setting the case for hearing was
published in Media Update once a week for three (3) consecutive weeks,
that is on February 20, 27, and March 6, 1993 as evidenced by the Affidavit
of Publication and the clippings attached to the affidavit, and by the copies of
the Media Update published on the aforementioned dates; further, copy of
the order setting the case for hearing together with copy of the petition had
been served upon the Solicitor General, City Prosecutor of Kalookan City,
Civil Registrar of Kalookan City and the private respondents, the Court holds
that the petitioners have complied with the jurisdictional requirements for
the Court to take cognizance of this case.
xxx

xxx

x x x.

SO ORDERED.[12]
Petitioners attempts at seeking a reconsideration of the abovementioned orders of Judge Veneracion and Judge Hamoy failed, hence their
recourse to the Court of Appeals via a Petition for Certiorari and Prohibition
with Application for the Issuance of a Temporary Restraining Order and/or
Writ of Preliminary Injunction. Petitioners averred that respondents judges
had acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the assailed orders allowing the petitions for the
cancellation and/or correction of entries in petitioners records of birth to
prosper in the lower courts.
In their petition before the Court of Appeals, the petitioners raised the
following arguments: (1) Rule 108 is inappropriate for impugning the
legitimacy and filiation of children; (2) Respondents judges are sanctioning a
collateral attack against the filiation and legitimacy of children; (3)
Respondents judges are allowing private respondents to impugn the
legitimacy and filiation of their siblings despite the fact that their undisputed
common father is still alive; (4) Respondents judges are entertaining
petitions which are already time-barred; and (5) The petitions below are part
of a forum-shopping spree.[13]
Finding no merit in petitioners arguments, the Court of Appeals
dismissed their petition in a Decision dated October 28, 1994.[14] Petitioners
Motion for Reconsideration of the said decision was also denied by the Court
of Appeals in a Resolution dated December 19, 1994.[15]
Hence, this petition.

I. Petitioners contend that resort to Rule 108 of the Revised Rules of

Court is improper since private respondents seek to have the entry for the
name of petitioners mother changed from Keh Shiok Cheng to Tiu Chuan
who is a completely different person. What private respondents therefore
seek is not merely a correction in name but a declaration that petitioners
were not born of Lee Tek Shengs legitimate wife, Keh Shiok Cheng, but of
his
mistress,
Tiu
Chuan,
in
effect
a
bastardization
of
petitioners.[16] Petitioners thus label private respondents suits before the
lower courts as a collateral attack against their legitimacy in the guise of a
Rule 108 proceeding.
Debunking petitioners above contention, the Court of Appeals
observed:
xxx

xxx

x x x.

this Court, sitting en banc, held therein that even substantial errors in a civil
register may be corrected and the true facts established provided the parties
aggrieved by the error avail themselves of the appropriate adversary
proceeding.[21] In the said case, we also laid down the rule that a
proceeding for correction and/or cancellation of entries in the civil register
under Rule 108 ceases to be summary in nature and takes on the
characteristics of an appropriate adversary proceeding when all the
procedural requirements under Rule 108 are complied with. Thus we held:
Provided the trial court has conducted proceedings where all relevant facts
have been fully and properly developed, where opposing counsel have been
given opportunity to demolish the opposite partys case, and where the
evidence has been thoroughly weighed and considered, the suit or
proceeding is appropriate.

As correctly pointed out by the private respondents in their comment x x x,

the proceedings are simply aimed at establishing a particular fact, status
and/or right. Stated differently, the thrust of said proceedings was to
establish the factual truth regarding the occurrence of certain events which
created or affected the status of persons and/or otherwise deprived said
persons of rights.[17]

The pertinent sections of rule 108 provide:

xxx

SEC. 4. Notice and publication. - Upon the filing of the petition, the court
shall, by an order, fix the time and place for the hearing of the same, and
cause reasonable notice thereof to be given to the persons named in the
petition. The court shall also cause the order to be published once in a week
for three (3) consecutive weeks in a newspaper of general circulation in the
province.

xxx

x x x.

It is precisely the province of a special proceeding such as the one

outlined under Rule 108 of the Revised Rules of Court to establish the status
or right of a party, or a particular fact.[18] The petitions filed by private
respondents for the correction of entries in the petitioners records of birth
were intended to establish that for physical and/or biological reasons it was
impossible for Keh Shiok Cheng to have conceived and given birth to the
petitioners as shown in their birth records. Contrary to petitioners
contention that the petitions before the lower courts were actually actions to
impugn legitimacy, the prayer therein is not to declare that petitioners are
illegitimate children of Keh Shiok Cheng, but to establish that the former are
not the latters children. There is nothing to impugn as there is no blood
relation at all between Keh Shiok Cheng and petitioners.[19]
Further sanctioning private respondents resort to Rule 108, the Court of
Appeals adverted to our ruling in the leading case of Republic vs.
Valencia[20] where we affirmed the decision of Branch XI of the then Court of
First Instance (CFI) of Cebu City ordering the correction in the nationality
and civil status of petitioners minor children as stated in their records of
birth from Chinese to Filipino, and legitimate to illegitimate,
respectively. Although recognizing that the changes or corrections sought to
be effected are not mere clerical errors of a harmless or innocuous nature,

SEC. 3. Parties. - When cancellation or correction of an entry in the civil

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

SEC. 5. Opposition. The civil registrar and any person having or claiming
any interest under the entry whose cancellation or correction is sought may,
within fifteen (15) days from notice of the petition, or from the last date of
publication of such notice, file his opposition thereto.
Thus, the persons who must be made parties to a proceeding concerning
the cancellation or correction of an entry in the civil register are - (1) the civil
registrar, and (2) all persons who have or claim any interest which would be
affected thereby. Upon the filing of the petition, it becomes the duty of the
court to - (1) issue an order fixing the time and place for the hearing of the
petition, and (2) cause the order for hearing to be published once a week for
three (3) consecutive weeks in a newspaper of general circulation in the
province. The following are likewise entitled to oppose the petition: - (1) the

civil registrar, and (2) any person having or claiming any interest under the
entry whose cancellation or correction is sought.
If all these procedural requirements have been followed, a petition for
correction and/or cancellation of entries in the record of birth even if filed
and conducted under Rule 108 of the Revised Rules of Court can no longer
be described as summary. There can be no doubt that when an opposition
to the petition is filed either by the Civil Registrar or any person having or
claiming any interest in the entries sought to be cancelled and/or corrected
and the opposition is actively prosecuted, the proceedings thereon become
adversary proceedings.[22] (Underscoring supplied.)
To the mind of the Court of Appeals, the proceedings taken in both
petitions for cancellation and/or correction of entries in the records of birth
of petitioners in the lower courts are appropriate adversary proceedings.

nature.[24] The petitioners point to the case of Labayo-Rowe vs.

Republic,[25] which is of a later date than Republic vs. Valencia,[26] where this
Court reverted to the doctrine laid down in earlier cases,[27] starting with Ty
Kong Tin vs. Republic,[28] prohibiting the extension of the application of Rule
108 beyond innocuous or harmless changes or corrections. Petitioners
contend that as held in Go, et al. vs. Civil Registrar,[29] allowing substantial
changes under Rule 108 would render the said rule unconstitutional as the
same would have the effect of increasing or modifying substantive rights.
At the outset, it should be pointed out that in the cited case of LabayoRowe vs. Republic,[30] the reason we declared null and void the portion of the
lower courts order directing the change of Labayo-Rowes civil status and
the filiation of one of her children as appearing in the latters record of birth,
is not because Rule 108 was inappropriate to effect such changes, but
because Labayo-Rowes petition before the lower court failed to implead all
indispensable parties to the case.

We agree. As correctly observed by the Court of Appeals:

In the instant case, a petition for cancellation and/or correction of entries of
birth was filed by private respondents and pursuant to the order of the RTCManila, dated February 17, 1993, a copy of the order setting the case for
hearing was ordered published once a week for three (3) consecutive weeks
in a newspaper of general circulation in the Philippines. In the RTCKalookan, there was an actual publication of the order setting the case for
hearing in Media Update once a week for three (3) consecutive weeks. In
both cases notices of the orders were ordered served upon the Solicitor
General, the Civil Registrars of Manila and Kalookan and upon the petitioners
herein. Both orders set the case for hearing and directed the Civil Registrars
and the other respondents in the case below to file their oppositions to the
said petitions. A motion to dismiss was consequently filed by herein
petitioners Marcelo, Mariano, Pablo, Helen, Catalino and Eusebio, all
surnamed Lee, and Albina Lee-Young in the RTC-Manila, and an opposition
was filed by Emma Lee in the RTC-Kalookan.
In view of the foregoing, we hold that the petitions filed by the private
respondents in the courts below by way of a special proceeding for
cancellation and/or correction of entries in the civil registers with the
requisite parties, notices and publications could very well be regarded as that
proper suit or appropriate action.[23] (Underscoring supplied.)
The petitioners assert, however, that making the proceedings
adversarial does not give trial courts the license to go beyond the ambit of
Rule 108 which is limited to those corrections contemplated by Article 412 of
the New Civil Code or mere clerical errors of a harmless or innocuous

We explained in this wise:

x x x. An appropriate proceeding is required wherein all the indispensable
parties should be made parties to the case as required under Section 3, Rule
108 of the Revised Rules of Court.
In the case before Us, since only the Office of the Solicitor General was
notified through the Office of the Provincial Fiscal, representing the Republic
of the Philippines as the only respondent, the proceedings taken, which is
summary in nature, is short of what is required in cases where substantial
alterations are sought. Aside from the Office of the Solicitor General, all
other indispensable parties should have been made respondents. They
include not only the declared father of the child but the child as well,
together with the paternal grandparents, if any, as their hereditary rights
would be adversely affected thereby. All other persons who may be affected
by the change should be notified or represented x x x.
xxx

xxx

x x x.

The right of the child Victoria to inherit from her parents would be
substantially impaired if her status would be changed from legitimate to
illegitimate. Moreover, she would be exposed to humiliation and
embarrassment resulting from the stigma of an illegitimate filiation that she
will bear thereafter. The fact that the notice of hearing of the petition was
published in a newspaper of general circulation and notice thereof was
served upon the State will not change the nature of the proceedings
taken. Rule 108, like all the other provisions of the Rules of Court, was

promulgated by the Supreme Court pursuant to its rule-making authority

under Section 13, Article VIII of the 1973 Constitution, which directs that
such rules shall not diminish, increase or modify substantive rights. If Rule
108 were to be extended beyond innocuous or harmless changes or
corrections of errors which are visible to the eye or obvious to the
understanding, so as to comprehend substantial and controversial alterations
concerning citizenship, legitimacy of paternity or filiation, or legitimacy of
marriage, without observing the proper proceedings as earlier mentioned,
said rule would thereby become an unconstitutional exercise which would
tend to increase or modify substantive rights. This situation is not
contemplated under Article 412 of the Civil Code.[31] (Underscoring
supplied).
Far from petitioners theory, this Courts ruling in Labayo-Rowe vs.
Republic[32] does not exclude recourse to Rule 108 of the Revised Rules of
Court to effect substantial changes or corrections in entries of the civil
register. The only requisite is that the proceedings under Rule 108 be
an appropriate adversary proceeding as contra-distinguished from
a summary proceeding. Thus:
If the purpose of the petition [for cancellation and/or correction of entries in
the civil register] is merely to correct the clerical errors which are visible to
the eye or obvious to the understanding, the court may, under a summary
procedure, issue an order for the correction of a mistake. However, as
repeatedly construed, changes which may affect the civil status from
legitimate to illegitimate, as well as sex, are substantial and controversial
alterations which can only be allowed after appropriate adversary
proceedings depending upon the nature of the issues involved. Changes
which affect the civil status or citizenship of a party are substantial in
character and should be threshed out in a proper action depending upon the
nature of the issues in controversy, and wherein all the parties who may be
affected by the entries are notified or represented and evidence is submitted
to prove the allegations of the complaint, and proof to the contrary admitted.
x x x.[33] (Underscoring supplied.)
It is true that in special proceedings formal pleadings and a hearing may
be dispensed with, and the remedy granted upon mere application or
motion. But this is not always the case, as when the statute expressly
provides.[34] Hence, a special proceeding is not always summary. One only
has to take a look at the procedure outlined in Rule 108 to see that what is
contemplated therein is not a summary proceeding per se. Rule 108
requires publication of the petition three (3) times, i.e., once a week for
three (3) consecutive weeks (Sec. 4). The Rule also requires inclusion as
parties of all persons who claim any interest which would be affected by the

cancellation or correction (Sec. 3). The civil registrar and any person in
interest are also required to file their opposition, if any, within fifteen (15)
days from notice of the petition, or from the last date of publication of such
notice (Sec. 5). Last, but not the least, although the court may make orders
expediting the proceedings, it is after hearing that the court shall either
dismiss the petition or issue an order granting the same (Sec. 7).
Thus, we find no reason to depart from our ruling in Republic vs.
Valencia,[35] that Rule 108, when all the procedural requirements thereunder
are followed, is the appropriate adversary proceeding to effect
substantial corrections and changes in entries of the civil register. It must be
conceded, however, that even after Republic vs. Valencia[36] there continues
to be a seesawing of opinion on the issue of whether or not substantial
corrections in entries of the civil register may be effected by means of Rule
108 in relation to Article 412 of the New Civil Code. The more recent cases
of Leonor vs. Court of Appeals[37] and Republic vs. Labrador[38] do seem to
signal a reversion to the Ty Kong Tin ruling which delimited the scope of
application of Article 412 to clerical or typographical errors in entries of the
civil register.
In Republic vs. Labrador, the Court held that Rule 108 cannot be used
to modify, alter or increase substantive rights, such as those involving the
legitimacy or illegitimacy of a child. We ruled thus:
This issue has been resolved in Leonor vs. Court of Appeals. In that case,
Respondent Mauricio Leonor filed a petition before the trial court seeking the
cancellation of the registration of his marriage to Petitioner Virginia
Leonor. He alleged, among others, the nullity of their legal vows arising
from the non-observance of the legal requirements for a valid marriage. In
debunking the trial courts ruling granting such petition, the Court held as
follows:
On its face, the Rule would appear to authorize the cancellation of any entry
regarding marriages in the civil registry for any reason by the mere filing of
a verified petition for the purpose. However, it is not as simple as it
looks. Doctrinally, the only errors that can be canceled or corrected under
this Rule are typographical or clerical errors, not material or substantial ones
like the validity or nullity of a marriage. A clerical error is one which is visible
to the eyes or obvious to the understanding; error made by a clerk or a
transcriber; a mistake in copying or writing (Black vs. Republic, L-10869,
Nov. 28, 1958); or some harmless and innocuous change such as a
correction of name that is clearly misspelled or of a misstatement of the
occupation of the parent (Ansalada vs. Republic, L-10226, Feb. 14, 1958).

Where the effect of a correction in a civil registry will change the civil status
of petitioner and her children from legitimate to illegitimate, the same cannot
be granted except only in an adversarial x x x.
Clearly and unequivocally, the summary procedure under Rule 108, and for
that matter under Article 412 of the Civil Code cannot be used by Mauricio to
change his and Virginias civil status from married to single and of their three
children from legitimate to illegitimate. x x x
Thus, where the effect of a correction of an entry in a civil registry will
change the status of a person from legitimate to illegitimate, as in Sarah
Zitas case, the same cannot be granted in summary proceedings.[39]
It is, therefore, high time that we put an end to the confusion sown by
pronouncements seemingly in conflict with each other, and perhaps, in the
process, stem the continuing influx of cases raising the same substantial
issue.
The basis for the pronouncement that extending the scope of Rule 108
to substantial corrections is unconstitutional is embodied in the early case
of Ty Kong Tin vs. Republic[40] that first delineated the extent or scope of the
matters that may be changed or corrected pursuant to Article 412 of the
New Civil Code. The Supreme Court ruled in this case that:
x x x. After a mature deliberation, the opinion was reached that what was
contemplated therein are mere corrections of mistakes that are clerical in
nature and not those that may affect the civil status or the nationality or
citizenship of the persons involved. If the purpose of the petition is merely a
clerical error then the court may issue an order in order that the error or
mistake may be corrected. If it refers to a substantial change, which affects
the status or citizenship of a party, the matter should be threshed out in a
proper action depending upon the nature of the issue involved. Such action
can be found at random in our substantive and remedial laws the
implementation of which will naturally depend upon the factors and
circumstances that might arise affecting the interested parties. This opinion
is predicated upon the theory that the procedure contemplated in article 412
is summary in nature which cannot cover cases involving controversial
issues.[41]
This doctrine was taken a step further in the case of Chua Wee, et al.
vs. Republic[42] where the Court said that:
From the time the New Civil Code took effect on August 30, 1950 until the
promulgation of the Revised Rules of Court on January 1, 1964, there was no

law nor rule of court prescribing the procedure to secure judicial

authorization to effect the desired innocuous rectifications or alterations in
the civil register pursuant to Article 412 of the New Civil Code. Rule 108 of
the Revised Rules of Court now provides for such a procedure which should
be limited solely to the implementation of Article 412, the substantive law on
the matter of correcting entries in the civil register. Rule 108, like all the
other provisions of the Rules of Court, was promulgated by the Supreme
Court pursuant to its rule-making authority under Section 13 of Art. VIII of
the Constitution, which directs that such rules of court shall not diminish or
increase or modify substantive rights. If Rule 108 were to be extended
beyond innocuous or harmless changes or corrections of errors which are
visible to the eye or obvious to the understanding, so as to comprehend
substantial and controversial alterations concerning citizenship, legitimacy of
paternity or filiation, or legitimacy of marriage, said Rule 108 would thereby
become unconstitutional for it would be increasing or modifying substantive
rights, which changes are not authorized under Article 412 of the New Civil
Code.[43] (Underscoring supplied).
We venture to say now that the above pronouncements proceed from a
wrong premise, that is, the interpretation that Article 412 pertains only to
clerical errors of a harmless or innocuous nature, effectively excluding from
its domain, and the scope of its implementing rule, substantial changes that
may affect nationality, status, filiation and the like. Why the limited scope of
Article 412? Unfortunately, Ty Kong Tin does not satisfactorily answer this
question except to opine that the procedure contemplated in Article 412 is
summary in nature and cannot, therefore, cover cases involving controversial
issues. Subsequent cases have merely echoed the Ty Kong Tin doctrine
without, however, shedding light on the matter.
The flaw in Ty Kong Tin lies in its theory that Article 412 contemplates a
summary procedure.
First of all, Article 412 is a substantive law that provides as follows:
No entry in a civil register shall be changed or corrected, without a judicial
order.
It does not provide for a specific procedure of law to be followed except
to say that the corrections or changes must be effected by judicial order. As
such, it cannot be gleaned therefrom that the procedure contemplated for
obtaining such judicial order is summary in nature.
Secondly, it is important to note that Article 412 uses both the terms
corrected and changed. In its ordinary sense, to correct means to make
or set right; to remove the faults or errors from[44]while to change means

to replace something with something else of the same kind or with

something that serves as a substitute.[45] The provision neither qualifies as
to the kind of entry to be changed or corrected nor does it distinguish on the
basis of the effect that the correction or change may have. Hence, it is
proper to conclude that all entries in the civil register may be changed or
corrected under Article 412. What are the entries in the civil register? We
need not go further than Articles 407 and 408 of the same title to find the
answer.
Art. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.
Art. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments
of marriage; (6) judgments declaring marriages void from the beginning; (7)
legitimations; (8) adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship; (13) civil
interdiction; (14) judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.
It is beyond doubt that the specific matters covered by the preceding
provisions include not only status but also nationality. Therefore, the Ty
Kong Tin pronouncement that Article 412 does not contemplate matters that
may affect civil status, nationality or citizenship is erroneous. This
interpretation has the effect of isolating Article 412 from the rest of the
articles in Title XVI, Book I of the New Civil Code, in clear contravention of
the rule of statutory construction that a statute must always be construed as
a whole such that the particular meaning to be attached to any word or
phrase is ascertained from the context and the nature of the subject
treated.[46]
Thirdly, Republic Act No. 9048[47] which was passed by Congress on
February 8, 2001 substantially amended Article 412 of the New Civil Code, to
wit:
SECTION 1. Authority to Correct Clerical or Typographical Error and Change
of First Name or Nickname.- No entry in a civil register shall be changed or
corrected without a judicial order, except for clerical or typographical errors
and change of first name or nickname which can be corrected or changed by
the concerned city or municipal civil registrar or consul general in accordance
with the provisions of this Act and its implementing rules and regulations.

The above law speaks clearly. Clerical or typographical errors in entries

of the civil register are now to be corrected and changed without need of a
judicial order and by the city or municipal civil registrar or consul
general. The obvious effect is to remove from the ambit of Rule 108 the
correction or changing of such errors in entries of the civil register. Hence,
what is left for the scope of operation of Rule 108 are substantial changes
and corrections in entries of the civil register. This is precisely the opposite
of what Ty Kong Tin and other cases of its genre had said, perhaps another
indication that it was not sound doctrine after all.
It may be very well said that Republic Act No. 9048 is Congress
response to the confusion wrought by the failure to delineate as to what
exactly is that so-called summary procedure for changes or corrections of
a harmless or innocuous nature as distinguished from that appropriate
adversary proceeding for changes or corrections of a substantial
kind. For we must admit that though we have constantly referred to
an appropriate adversary proceeding, we have failed to categorically
state just what that procedure is. Republic Act No. 9048 now embodies
that summary procedure while Rule 108 is that appropriate adversary
proceeding. Be that as it may, the case at bar cannot be decided on the
basis of Republic Act No. 9048 which has prospective application. Hence,
the necessity for the preceding treatise.
II. The petitioners contend that the private respondents have no cause
of action to bring the cases below as Article 171 of the Family Code allows
the heirs of the father to bring an action to impugn the legitimacy of his
children only after his death.[48]
Article 171 provides:
The heirs of the husband may impugn the filiation of the child within the
period prescribed in the preceding article only in the following cases:
(1) If the husband should die before the expiration of the period fixed for
bringing this action;
(2) If he should die after the filing of the complaint, without having desisted
therefrom; or
(3) If the child was born after the death of the husband.
Petitioners contention is without merit.
In the recent case of Babiera vs. Catotal,[49] we upheld the decision of
the Court of Appeals that affirmed the judgment of the RTC of Lanao del

Norte declaring the birth certificate of one Teofista Guinto as null and void ab
initio, and ordering the Local Civil Registrar of Iligan City to cancel the same
from the Registry of Live Births. We ruled therein that private respondent
Presentacion Catotal, child of spouses Eugenio Babiera and Hermogena
Cariosa, had the requisite standing to initiate an action to cancel the entry
of birth of Teofista Babiera, another alleged child of the same spouses
because she is the one who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the suit.[50]
We likewise held therein that:
x x x Article 171 of the Family Code is not applicable to the present case. A
close reading of the provision shows that it applies to instances in which the
father impugns the legitimacy of his wifes child. The provision, however,
presupposes that the child was the undisputed offspring of the mother. The
present case alleges and shows that Hermogena did not give birth to
petitioner. In other words, the prayer therein is not to declare that petitioner
is an illegitimate child of Hermogena, but to establish that the former is not
the latters child at all. x x x.[51]
Similarly, we ruled in Benitez-Badua vs. Court of Appeals[52] that:
Petitioners insistence on the applicability of Articles 164, 166, 170 and 171
of the Family Code to the case at bench cannot be sustained. x x x.
xxx

xxx

x x x.

A careful reading of the above articles will show that they do not
contemplate a situation, like in the instant case, where a child is alleged not
be the child of nature or biological child of a certain couple. Rather, these
articles govern a situation where a husband (or his heirs) denies as his own a
child of his wife. Thus, under Article 166, it is the husband who can impugn
the legitimacy of said child by proving: (1) it was physically impossible for
him to have sexual intercourse, with his wife within the first 120 days of the
300 days which immediately preceded the birth of the child; (2) that for
biological or other scientific reasons, the child could not have been his child;
(3) that in case of children conceived through artificial insemination, the
written authorization or ratification by either parent was obtained through
mistake, fraud, violence, intimidation or undue influence. Articles 170 and
171 reinforce this reading as they speak of the prescriptive period within
which the husband or any of his heirs should file the action impugning the
legitimacy of said child. Doubtless then, the appellate court did not err when
it refused to apply these articles to the case at bench. For the case at bench
is not one where the heirs of the late Vicente are contending that petitioner

is not his child by Isabel. Rather, their clear submission is that petitioner
was not born to Vicente and Isabel. Our ruling in Cabatbat-Lim vs.
Intermediate Appellate Court, 166 SCRA 451, 457 cited in the impugned
decision is apropos, viz:
Petitioners recourse to Article 263 of the New Civil Code [now Art. 170 of
the Family Code] is not well taken. This legal provision refers to an action to
impugn legitimacy. It is inapplicable to this case because this is not an
action to impugn the legitimacy of a child, but an action of the private
respondents to claim their inheritance as legal heirs of their childless
deceased aunt. They do not claim that petitioner Violeta Cabatbat Lim is an
illegitimate child of the deceased, but that she is not the decedents child at
all. Being neither legally adopted child, nor an acknowledged natural child,
nor a child by legal fiction of Esperanza Cabatbat, Violeta is not a legal heir
of the deceased.[53]
III. Petitioners claim that private respondents cause of action had
already prescribed as more than five (5) years had lapsed between the
registration of the latest birth among the petitioners in 1960 and the filing of
the actions in December of 1992 and February of 1993.[54]
We disagree. As correctly pointed out by the Court of Appeals,
inasmuch as no law or rule specifically prescribes a fixed time for filing the
special proceeding under Rule 108 in relation to Article 412 of the New Civil
Code, it is the following provision of the New Civil Code that applies:
Art. 1149. All other actions whose periods are not fixed in this Code or in
other laws must be brought within five years from the time the right of
action accrues.
The right of action accrues when there exists a cause of action, which
consists of three (3) elements, namely: a) a right in favor of the plaintiff by
whatever means and under whatever law it arises or is created; b) an
obligation on the part of the defendant to respect such right; and c) an act
or omission on the part of such defendant violative of the right of the
plaintiff. It is only when the last element occurs or takes place that it can be
said in law that a cause of action has arisen.[55]
It is indubitable that private respondents have a cause of action. The
last element of their cause of action, that is, the act of their father in
falsifying the entries in petitioners birth records, occurred more than thirty
(30) years ago. Strictly speaking, it was upon this occurrence that private
respondents right of action or right to sue accrued. However, we must take
into account the fact that it was only sometime in 1989 that private

respondents discovered that they in fact had a cause of action against

petitioners who continue to use said falsified birth records.
Hence, it would result in manifest injustice if we were to deprive private
respondents of their right to establish the truth about a fact, in this case,
petitioners true mother, and their real status, simply because they had
discovered the dishonesty perpetrated upon them by their common father at
a much later date. This is especially true in the case of private respondents
who, as their fathers legitimate children, did not have any reason to suspect
that he would commit such deception against them and deprive them of their
sole right to inherit from their mothers (Keh Shiok Chengs) estate. It was
only sometime in 1989 that private respondents suspicions were aroused
and confirmed. From that time until 1992 and 1993, less than five (5) years
had lapsed.
Petitioners would have us reckon the five-year prescriptive period from
the date of the registration of the last birth among the petitioners-siblings in
1960, and not from the date private respondents had discovered the false
entries in petitioners birth records in 1989. Petitioners base their position on
the fact that birth records are public documents, hence, the period of
prescription for the right of action available to the private respondents
started to run from the time of the registration of their birth certificates in
the Civil Registry.
We cannot agree with petitioners thinking on that point.
It is true that the books making up the Civil Register and all documents
relating thereto are public documents and shall be prima facie evidence of
the facts therein contained.[56] Petitioners liken their birth records to land
titles, public documents that serve as notice to the whole
world. Unfortunately for the petitioners, this analogy does not hold
water. Unlike a title to a parcel of land, a persons parentage cannot be
acquired by prescription. One is either born of a particular mother or not. It
is that simple.
IV. Finally, petitioners accuse private respondents of forum
shopping. They enumerate the other actions filed by private respondents
against them prior to the filing of their Rule 108 petitions in the lower courts,
as follows:
(1) A criminal complaint for falsification of entries in the birth
certificates filed against their father as principal and against
defendants as alleged accessories;
(2) A petition for the cancellation of the naturalization certificate of
their father, Lee Tek Sheng; and

(3) A petition for partition of Keh Shiok Chengs estate.[57]

According to the petitioners, all the three (3) actions above-mentioned,
as well as the Rule 108 petitions, subject of the case before us, raise the
common issue of whether petitioners are the natural children of Keh Shiok
Cheng or Tiu Chuan. They contend that in all these cases, the judge or
hearing officer would have to resolve this issue in order to determine
whether or not to grant the relief prayed for.[58]
Forum shopping is present when in the two or more cases pending
there is identity of parties, rights or causes of action and reliefs
sought.[59] Even a cursory examination of the pleadings filed by private
respondents in their various cases against petitioners would reveal that at
the very least there is no identity of rights or causes of action and reliefs
prayed for. The present case has its roots in two (2) petitions filed under
Rule 108, the purpose of which is to correct and/or cancel certain entries in
petitioners birth records. Suffice it to state, the cause of action in these
Rule 108 petitions and the relief sought therefrom are very different from
those in the criminal complaint against petitioners and their father which has
for its cause of action, the commission of a crime as defined and penalized
under the Revised Penal Code, and which seeks the punishment of the
accused; or the action for the cancellation of Lee Tek Shengs naturalization
certificate which has for its cause of action the commission by Lee Tek Sheng
of an immoral act, and his ultimate deportation for its object; or for that
matter, the action for partition of Keh Shiok Chengs estate which has for its
cause of action the private respondents right under the New Civil Code to
inherit from their mothers estate.
We therefore concur in the finding of the Court of Appeals that there is
no forum shopping to speak of in the concept that this is described and
contemplated in Circular No. 28-91 of the Supreme Court.
WHEREFORE, the petition is hereby DENIED and the assailed decision
of the Court of Appeals dated October 28, 1994 is AFFIRMED.
SO ORDERED.

[G.R. No. 120587. January 20, 2004]

MILAGROS M. BARCO, as the Natural Guardian and Guardian Ad

Litem of MARY JOY ANN GUSTILO, petitioner, vs. COURT OF
APPEALS (SPECIAL SIXTEENTH DIVISION), REGIONAL
TRIAL COURT (BR. 133-MAKATI), NCJR; THE LOCAL CIVIL
REGISTRAR
OF
MAKATI;
and
NADINA
G.
MARAVILLA, respondents.
DECISION
TINGA, J.:
The story behind the present petition is a portrait of dysfunction. The
familial situation of the parties is complicated, to say the least. The judicial
conferment of the status of illegitimacy on a daughter who is by law
legitimate has created a tangled braid of various legal doctrines that, like the
Gordian knot of yore, is in this case ultimately unbound through one fell
swoop of the sword.
On 24 December 1970, private respondent Nadina Maravilla (Nadina)
married Francisco Maravilla (Francisco). By February of 1977, the spouses
had opted to live separately,[1]and in February of the following year they
obtained an ecclesiastical annulment of marriage issued by the Catholic
Diocese of Bacolod City.[2] On 9 June 1978, Nadina gave birth to a daughter
named June Salvacion (June) in Makati, Metro Manila. Junes birth
certificate listed Francisco Maravilla as the father, and Maravilla as the childs
surname.[3] Nadina signed the birth certificate shortly after it was
accomplished.
Despite the notation in Junes birth certificate, Nadina subsequently
claimed that all along, the real father of her child was Armando Gustilo
(Gustilo), a former Congressman with whom she maintained a relationship.
At the time of Junes birth, Gustilo was married to one Consuelo Caraycong,
who would later perish in the MV Don Juan naval accident of 1981.[4] On 21
August 1982, Nadina and Gustilo were married in the United States.[5] This
marriage took place two and a half years before Nadinas marriage to
Francisco was alleged to have been annulled in the Philippines. On 12 March
1985, Nadina apparently was able to obtain a judicial declaration annulling
her marriage to Francisco.[6]
On 17 March 1983, Nadina filed in her own name a Petition for
Correction of Entries in the Certificate of Birth of her daughter June with the

Regional Trial Court (RTC) of Makati.[7]Therein, she alleged that she had
been living separately from her lawful spouse Francisco since February of
1977, and that Gustilo was the real father of June.[8] She claimed that she
did not allow Francisco to have any sexual congress with her within the first
20 days of the three hundred days preceding the birth of June.[9] She prayed
that the Local Civil Registrar of Makati be directed to correct the birth
certificate of June to the effect that the latters full name be made June
Salvacion C. Gustilo, and that the name of her father be changed from
Francisco Maravilla to Armando Gustilo. Notably, Francisco affixed his
signature to the Petition signifying his conformity thereto.[10]
On 20 March 1983. Gustilo filed a Constancia, wherein he
acknowledged June as his daughter with Nadina, and that he was posing no
objection to Nadinas petition.[11]
The Petition was docketed as SP Proc. No. M-130. On 26 July 1983, the
RTC, in accordance with Rule 108 of the Rules of Court, issued
an Order setting the case for hearing and directing that a copy of the order
be published once a week for three consecutive weeks in a newspaper of
general circulation. On 7 September 1983, Nadina filed an Amended
Petition,[12] this time impleading Francisco and Gustilo as respondents.
Correspondingly, the RTC amended the Order on 22 September 1983 to
reflect the additional impleaded parties.[13]
The Office of the Solicitor General filed a Motion to Dismiss the petition
on the ground that the RTC had no jurisdiction over the subject matter
and/or the nature of th[e] suit.[14] They cited various jurisprudence holding
that only innocuous or clerical errors may be corrected under a Rule 108
petition for correction of entries, and that the Petition seeks changes are
substantial and controversial in character which directly affect the filiation
and legitimacy of petitioners daughter.[15] On 23 February 1984, the Motion
to Dismiss was denied by the RTC, which also subsequently denied a Motion
for Reconsideration thereto filed by the Solicitor General.
On 7 January 1985, the RTC issued an Order (RTC Order) granting the
petition and ordering the requested corrections to be effected. The RTC
considered the claim of Nadina that she had relied completely on her uncle
William R. Veto[16] to facilitate the preparation of Junes birth certificate, that
it was through his inadvertence that the mistaken entries were made, and
that she was in intense physical discomfort when she had affixed her
signature to the birth certificate containing the incorrect entries.[17] The RTC
also noted that Francisco had signified his conformity to the action by signing
the original petition, and that Gustilo had manifested through
a Constancia dated 20 March 1983 that he was acknowledging June as his
daughter and expressing no objection to the petition.[18]

Gustilo died in 19 December 1986.[19] Two estate proceedings arose

from his death, one lodged in Makati,[20] the other in Harris County,
Texas.[21] Among the participants in both estate proceedings was Jose
Vicente Gustilo (Jose Vicente), allegedly a biological child of Gustilo.[22] On
5 March 1993, he filed with the Court of Appeals a Petition[23] seeking the
annulment of the RTC Order of 7 January 1985 which had effected changes
in the civil status of June. Jose Vicente amended his Petition in July of 1993
to implead Nadina as an indispensable party.[24] In her Comment, Nadina
countered that Jose Vicente had not sufficiently proven that he was a child of
Armando, and there was neither extrinsic fraud or lack of jurisdiction that
would justify the annulment of the RTC Order.[25] Nadina also pointed out
that the Makati intestate court had approved a compromise agreement
wherein the parties had agreed that the only heirs of the decedent Armando
are the surviving spouse, Nadina G. Gustilo, the daughter, June Salvacion G.
Gustilo, the son, Jose Vicente Gustilo III, and another daughter, Mary Joy
Ann Gustilo.[26] However, this compromise agreement was subsequently
voided on petition by Jose Vicente to the Court of Appeals, on the ground
that the Civil Code prohibited compromise as to the civil status of persons.[27]

alleging that Junes birth certificate had been amended to record the name
of her true father.[34]

After the Court of Appeals commenced hearings on the petition,

petitioner Milagros Barco (Barco), on 11 January 1994, filed in her capacity
as the natural guardian and/or guardianad litem of her daughter, Mary Joy
Ann Gustilo (Mary Joy), a Motion for Intervention with a Complaint-inIntervention attached thereto.[28] Barco alleged that Mary Joy had a legal
interest in the annulment of the RTC Order as she was likewise fathered by
Gustilo. In her Complaint-in-Intervention, Barco claimed that she and Gustilo
had maintained a relationship since 1967, and to them was born Mary Joy in
1977.[29] Barco also alleged that she actually moved in with Gustilo after the
death of the latters wife in 1980, and maintained her affair with Gustilo until
1983, when she was purportedly supplanted by Nadina as Gustilos
common-law companion after Gustilo had become gravely ill.[30]

3) The petition for correction was filed out of time, as Article 263 of the
Civil Code of 1950 sets a prescriptive period for impugning the legitimacy of
a child which is one year from the recording of birth in the Civil Registry, if
the husband should be in the same place, or in a proper case, any of his
heirs;

After the parties had filed their respective memoranda, the Court of
Appeals rendered a Decision on 13 March 1995, dismissing both
the Petition and the Complaint-in-Intervention.[31] The appellate court held
that neither Jose Vicente nor Barco were able to establish the existence of
lack of jurisdiction and extrinsic fraud, the two grounds that would justify the
annulment of a final judgment.[32] It ruled that while Jose Vicente and Barco
had not been made parties in the Petition for Correction, the subsequent
notice and publication of the Ordersetting the case for hearing served as
constructive notice to all parties who might have an interest to participate in
the case. The publication of the Order conferred upon the RTC the
jurisdiction to try and decide the case.[33] It also found no merit in Jose
Vicentes claim that he learned of the RTC Order only in November of 1992,
pointing out that as early as 1987, he filed a pleading with the intestate court

Only the intervenor Barco filed a Motion for Reconsideration[35] of the

Court of Appeals Decision, which the appellate court denied on 16 May
1995.[36] Thus,
Barco
filed
the
presentPetition
for
Review on
Certiorari seeking the reversal of the Court of Appeals Decision and the
annulment of the 1985 RTC Order.
Before this Court, Barco assails that RTC Order on the ground of lack of
jurisdiction. That was the same ground she invoked in the Court of Appeals.
Specifically, she raises the following issues:
1) Barco should have been made a party to the Nadinas petition and
the failure to implead her deprived the RTC of jurisdiction;
2) This RTC could not have entertained Nadinas petition, since the
Courts ruling in a long line of cases, beginning with Republic v.
Valencia,[37] that a petition for correction of entries in the civil register is not
limited to innocuous or clerical mistakes, applies only to citizenship cases;

4) Nadinas petition should have been treated as a petition for change

of name, which can only be filed by the person whose name is sought to be
changed;
5) The RTC Order contravenes the legal presumption that children born
during the pendency of a marriage are legitimate and the rule that legitimate
children cannot adopt the surname of a person who is not their father; and
6) The RTC should have excluded as hearsay the Constancia allegedly
signed by Gustilo and that the surrounding circumstances under which it was
issued gave reason to doubt its authenticity and credibility.
Interestingly, the questions that Barco raised would tickle the fancies of
erudite civilists yearning for a challenge. However, the ultimate resolution of
this case hinges on whether thede rigueur requirements of the extraordinary
remedy of annulment of judgment have been satisfied.
First, a brief revisit of the action to annul judgment.
The recourse is equitable in character, allowed only in exceptional
cases, as where there is no available or other adequate remedy. Annulment
of judgments is a remedy long authorized and sanctioned in our

jurisdiction.[38] As far back as 1918, this Court in Banco Espaol-Filipino v.

Palanca[39] recognized the availability of a direct attack of a final judgment on
the ground that it is void for want of jurisdiction. In Reyes v. Datu[40] we held
that the validity of a final judgment or order of the court may be attacked
only by a direct action or proceeding or by motion in another case on the
ground of lack of jurisdiction.
Yet, it was only in the 1997 Rules of Civil Procedure that for the first
time the procedure for the annulment of judgments or final orders and
resolutions in civil cases of regional trial courts, through a petition before the
Court of Appeals, was formally provided. Rule 47 thereof under which the
procedure was integrated incorporates settled jurisprudence on annulment of
judgment.
Statutory basis for the remedy was laid way back in 1980, with the
enactment of The Judiciary Reorganization Act of 1980.[41] Section 9 thereof
vests in the Court of Appeals exclusive original jurisdiction over actions for
annulment of judgments of the lower courts.
Section 2, Rule 47 of the 1997 Rules of Civil Procedure explicitly
provides only two grounds for annulment of judgment, namely: extrinsic
fraud and lack of jurisdiction. This express limitation is significant since
previous jurisprudence recognized other grounds as well.[42] The underlying
reason is traceable to the notion that annulling final judgments goes against
the grain of finality of judgment. Litigation must end and terminate sometime
and somewhere, and it is essential to an effective administration of justice
that once a judgment has become final the issue or cause involved therein
should be laid to rest. The basic rule of finality of judgment is grounded on
the fundamental principle of public policy and sound practice that at the risk
of occasional error, the judgment of courts and the award of quasi-judicial
agencies must become final at some definite date fixed by law.[43] Even if the
rule on annulment of judgment is grounded on equity, the relief is of an
extraordinary character, and not as readily available as the remedies
obtaining to a judgment that is not yet final.
There are two aspects of jurisdiction which are vital for disposition of
this case - jurisdiction over the nature of the action or subject matter,
and jurisdiction over the parties.[44]Barco claims that the RTC failed to
satisfy both aspects of jurisdiction. She opines that the RTC did not acquire
jurisdiction over the parties due to the failure to implead her as a party to
the petition for correction. On the other hand, the remaining issues that she
raises as errors put into question whether the RTC had jurisdiction over the
subject matter of Nadinas petition.

We shall first tackle the question of whether the RTC had acquired
jurisdiction over Barco and all other indispensable parties to the petition for
correction.
The essential requisite for allowing substantial corrections of entries in
the civil registry is that the true facts be established in an appropriate
adversarial proceeding. This is embodied in Section 3, Rule 108 of the Rules
of Court, which states:
Section 3. Parties When cancellation or correction of an entry in the civil
register is sought, the civil registrar and all persons who have or claim any
interest which would be affected thereby shall be made parties to the
proceeding.
The Court of Appeals held that jurisdiction over the parties was properly
acquired through the notice by publication effected in conformity with
Section 4 of Rule 108. Barco assails this holding and claims that the failure to
implead her as a party to the petition for correction deprived the RTC of
jurisdiction.
Undoubtedly, Barco is among the parties referred to in Section 3 of Rule
108. Her interest was affected by the petition for correction, as any judicial
determination that June was the daughter of Armando would affect her
wards share in the estate of her father. It cannot be established whether
Nadina knew of Mary Joys existence at the time she filed the petition for
correction. Indeed, doubt may always be cast as to whether a petitioner
under Rule 108 would know of all the parties whose interests may be
affected by the granting of a petition. For example, a petitioner cannot be
presumed to be aware of all the legitimate or illegitimate offsprings of
his/her spouse or paramour. The fact that Nadina amended her petition to
implead Francisco and Gustilo indicates earnest effort on her part to comply
with Section 3 as quoted above.
Yet, even though Barco was not impleaded in the petition, the Court of
Appeals correctly pointed out that the defect was cured by compliance with
Section 4, Rule 108, which requires notice by publication, thus:
Section 4. Upon the filing of the petition, the court shall, by order, fix the
time and place for the hearing of the same, and cause reasonable notice
thereof to be given to the persons named in the petition. The court shall also
cause the order to be published once a week for three (3) consecutive weeks
in a newspaper of general circulation in the province.
The purpose precisely of Section 4, Rule 108 is to bind the whole world
to the subsequent judgment on the petition. The sweep of the decision

would cover even parties who should have been impleaded under Section 3,
Rule 108, but were inadvertently left out. The Court of Appeals correctly
noted:
The publication being ordered was in compliance with, and borne out by the
Order of January 7, 1985. The actual publication of the September 22, 1983
Order, conferred jurisdiction upon the respondent court to try and decide the
case. While nobody appeared to oppose the instant petition during the
December 6, 1984 hearing, that did not divest the court from its jurisdiction
over the case and of its authority to continue trying the case. For, the rule is
well-settled, that jurisdiction, once acquired continues until termination of
the case.[45]
Verily, a petition for correction is an action in rem, an action against a
thing and not against a person.[46] The decision on the petition binds not only
the parties thereto[47] but the whole world.[48] An in rem proceeding is
validated essentially through publication.[49] Publication is notice to the whole
world that the proceeding has for its object to bar indefinitely all who might
be minded to make an objection of any sort against the right sought to be
established.[50] It is the publication of such notice that brings in the whole
world as a party in the case and vests the court with jurisdiction to hear and
decide it.[51]
Since the RTC properly acquired jurisdiction over the parties, what
remains for determination is whether it had acquired jurisdiction over
Nadinas cause of action. It should be emphasized that jurisdiction over the
nature of the action or the subject matter is conferred by law. This Courts
recent holding in Durisol Philippines, Inc. v. Court of Appeals[52] is instructive
in this regard:
[I]t should be stressed that in a petition for annulment of judgment based on
lack of jurisdiction, petitioner must show not merely an abuse of
jurisdictional discretion but an absolute lack of jurisdiction. Lack of
jurisdiction means absence of or no jurisdiction, that is, the court should not
have taken cognizance of the petition because the law does not vest it with
jurisdiction over the subject matter.[53]
The question of whether a court has jurisdiction over the subject matter
can be answered simply by determining if on the basis of the complaint or
petition the court has, under the law, the power to hear and decide the case.
Barcos remaining arguments are to be tested against this standard.
One of Barcos striking assertions is that the general rule still is that the
jurisdiction of the court in the correction of entries in the civil register is

limited to innocuous or clerical mistakes, as what she insinuates as the

apparent contrary holding in Republic v. Valencia[54] applies only to
citizenship cases.
Since the promulgation of the Valencia ruling in 1986 the Court has
repeatedly ruled that even substantial errors in a civil registry may be
corrected through a petition filed under Rule 108, with the true facts
established and the parties aggrieved by the error availing themselves of the
appropriate adversarial proceeding. Barco, by seeking to limit the application
of theValencia doctrine to citizenship cases, is flogging a dead horse. This
argument was debunked in subsequent cases,[55] notably the recent case
of Lee v. Court of Appeals.[56] The exhaustive disquisition therein of Justice
Sabino de Leon should preclude any further arguments on the scope of Rule
108.
The Court in Lee acknowledged that there existed a line of decided
cases, some of them decided after Valencia, stating that Rule 108 cannot be
used to effect substantial corrections in entries of the civil register.[57] The
doctrine was traced back to the 1954 case of Ty Kong Tin v. Republic,[58] the
rationale of which the Court reevaluated in Lee:
We venture to say now that the above pronouncements proceed from a
wrong premise, that is, the interpretation that Article 412 pertains only to
clerical errors of a harmless or innocuous nature, effectively excluding from
its domain, and the scope of its implementing rule, substantial changes that
may affect nationality, status, filiation and the like. Why the limited scope of
Article 412? Unfortunately, Ty Kong Tin does not satisfactorily answer this
question except to opine that the procedure contemplated in Article 412 is
summary in nature and cannot, therefore, cover cases involving controversial
issues. Subsequent cases have merely echoed the Ty Kong Tin doctrine
without, however, shedding light on the matter.
The flaw in Ty Kong Tin lies in its theory that Article 412 contemplates a
summary procedure.
First of all, Article 412 is a substantive law that provides as follows:
No entry in a civil register shall be changed or corrected, without a judicial
order.
It does not provide for a specific procedure of law to be followed except to
say that the corrections or changes must be effected by judicial order. As
such, it cannot be gleaned therefrom that the procedure contemplated for
obtaining such judicial order is summary in nature.

Secondly, it is important to note that Article 412 uses both the terms
corrected and changed. In its ordinary sense, to correct means to make
or set right; to remove the faults or errors from while to change means
to replace something with something else of the same kind or with
something that serves as a substitute. The provision neither qualifies as to
the kind of entry to be changed or corrected nor does it distinguish on the
basis of the effect that the correction or change may have. Hence, it is
proper to conclude that all entries in the civil register may be changed or
corrected under Article 412. What are the entries in the civil register? We
need not go further than Articles 407 and 408 of the same title to find the
answer.
Art. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.
Art. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages void
from the beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10) naturalization; (11)
loss, or (12) recovery of citizenship; (13) civil interdiction; (14)
judicial determination of filiation; (15) voluntary emancipation of a
minor; and (16) changes of name.
It is beyond doubt that the specific matters covered by the preceding
provisions include not only status but also nationality. Therefore, the Ty
Kong Tin pronouncement that Article 412 does not contemplate matters that
may affect civil status, nationality or citizenship is erroneous. This
interpretation has the effect of isolating Article 412 from the rest of the
articles in Title XVI, Book I of the New Civil Code, in clear contravention of
the rule of statutory construction that a statute must always be construed as
a whole such that the particular meaning to be attached to any word or
phrase is ascertained from the context and the nature of the subject
treated.[59]

Lee also points out that Republic Act No. 9048, enacted in 2001, has
effectively changed the nature of a proceeding under Rule 108. Under this
new law, clerical or typographical errors and change of first name or
nickname may now be corrected or changed by the concerned city or
municipal registrar or consul general, without need of any judicial order. The
obvious effect is to remove from the ambit of Rule 108 the correction or
changing of such errors in entries of the civil register. Hence, what is left for

the scope of operation of Rule 108 are substantial changes and corrections in
entries of the civil register.[60]
It may be very well said that Republic Act No. 9048 is Congresss response to
the confusion wrought by the failure to delineate as to what exactly is that
so-called summary procedure for changes or corrections of a harmless or
innocuous nature as distinguished from that appropriate adversary
proceeding for changes or corrections of a substantial kind. For we must
admit that though we have constantly referred to an appropriate adversary
proceeding, we have failed to categorically state just what that procedure is.
Republic Act No. 9048 now embodies that summary procedure while Rule
108 is that appropriate adversary proceeding. xxx[61]
Republic Act No. 9048 may not find application in this case, yet it is
clearly another indicium of how entrenched the Valencia ruling is today. With
the enactment of the law, the legislature acknowledged the potency of the
ruling. To repeat, substantial corrections to the civil status of persons
recorded in the civil registry may be effected through the filing of a petition
under Rule 108. Any further attempt to limit the scope of application of Rule
108 runs against the wall of judicial precedent cemented by legislative
affirmation.
Next, Barco argues that the petition for correction had prescribed under
the Civil Code; and that the petition for correction should be treated as a
petition for change of name which can only be filed by the person whose
name is sought to be changed. These arguments can be decided jointly.
They both are not well taken as they cannot allude to a lack of jurisdiction
that would render the RTC Order subject to annulment.
Assuming arguendo that Nadinas petition for correction had prescribed
and/or that the action seeking the change of name can only be filed by the
party whose name is sought to be changed, this does not alter the reality
that under the law the Makati RTC had jurisdiction over the subject matter of
the petition for correction. The Judiciary Reorganization Act of 1980, the
applicable law at the time, clearly conferred on the Makati RTC exclusive
original jurisdiction in all civil actions in which the subject of the litigation is
incapable of pecuniary estimation.[62] In complementation of grant of
jurisdiction, Section 1 of Rule 108 provides that the verified petition to the
cancellation or correction of any entry relating thereto should be filed with
the Court of First Instance (now Regional Trial Court) of the province where
the corresponding civil registry is located.
Prescription and lack of capacity to bring action cannot be ignored by a
court of law in properly resolving an action, to the extent that a finding that
any of these grounds exist will be sufficient to cause the dismissal of the

action.[63] Yet, the existence of these grounds does not oust the court from
its power to decide the case. Jurisdiction cannot be acquired through,
waived, enlarged or diminished by any act or omission of the
parties.[64] Contrariwise, lack of capacity to sue and prescriptions as grounds
for dismissal of an action may generally be rendered unavailing, if not raised
within the proper period.[65]
It thus follows that assuming that the petition for correction had
prescribed, or that Nadina lacked the capacity to file the action which led to
the change of her daughters name, the fact that the RTC granted
the Order despite the existence of these two grounds only characterizes the
decision as erroneous. An erroneous judgment is one though rendered
according to the course and practice of the court is contrary to law.[66] It is
not a void judgment.[67]
As for Barcos remaining arguments, they similarly fail, as the worst they
could establish is that the RTC Order is an erroneous judgment.
Barco correctly notes, however, that the RTC erred in directing that the
name of Nadinas daughter be changed from June Salvacion Maravilla to
June Salvacion Gustilo. Following the trial courts determination that Gustilo
was the father of June, but prescinding from the conclusive presumption of
legitimacy for the nonce assuming it could be done, the child would
obviously be illegitimate. The applicable laws mandate that June, as an
illegitimate child, should bear the surname of her mother, and not the
father. [68] From another perspective, the RTCs error in ordering the change
of name is merely an error in the exercise of jurisdiction which neither
affects the courts jurisdiction over Nadinas petition nor constitutes a ground
for the annulment of a final judgment. As the seminal case of Herrera v.
Barretto[69] explains:
xxx Jurisdiction should therefore be distinguished from the exercise of
jurisdiction. The authority to decide a cause at all, and not the decision
rendered therein, is what makes up jurisdiction. Where there is jurisdiction of
the person and subject matter xxx the decision of all other questions arising
in the case is but an exercise of that jurisdiction.[70]
In the same vein, it is of no moment that the RTC Order contravenes
the legal presumption accorded June of being the legitimate child of
Francisco and Nadina.[71] A review of the records does indicate the
insufficiency of the evidence offered to defeat the presumption, against
which the only evidence admissible is the physical impossibility of the
husbands having access to his wife within the first one hundred and twenty
days of the three hundred which preceded the birth of the child.[72] It seems
that the RTC relied primarily on the testimony of Nadina in adjudging that

Gustilo, and not Francisco, was the father of June. Yet, Article 256 of the
Civil Code renders ineffectual any pronouncement against legitimacy made
by the mother.[73] The testimony proffered by the mother has no probative
value as regards Junes paternity. The RTCs cognizance of
Gustilos Constancia might likewise be subject to critical scrutiny.[74] But the
Court is now precluded from reviewing the RTCs appreciation of the
evidence, however erroneous it may be, because the Order is already final.
The RTCs possible misappreciation of evidence is again at most, an error in
the exercise of jurisdiction, which is different from lack of jurisdiction. These
purported errors do not extend to the competence of the RTC to decide the
matter and as such does not constitute a valid ground to annul the final
order.
The law sanctions the annulment of certain judgments which, though
final, are ultimately void. Annulment of judgment is an equitable principle not
because it allows a party-litigant another opportunity to reopen a judgment
that has long lapsed into finality but because it enables him to be discharged
from the burden of being bound to a judgment that is an absolute nullity to
begin with. The inevitable conclusion is that the RTC Order, despite its
apparent flaws, is not null and void, and thus cannot be annulled.
Consequently, the Court of Appeals committed no reversible error in issuing
the assailed decision.
This Court has been constrained in the past to leave erroneous
decisions as they were.[75] Our fealty to justice in its pristine form the
upholding of right over wrong is equipoised with our adherence to due
process, and the rules that emanate from that principle. The Court takes
great care in drafting rules of procedure so that the axioms that govern the
legal battleground may live up to Justice Frankfurters approximation of due
process as the embodiment of the sporting idea of fair play.[76] Due process
dictates that litigants be afforded a reasonable opportunity to attack
erroneous judgments and be shielded from the adverse effects of void
judgments. Due process likewise demands that a party, after trekking the
long road of litigation should be permitted to enjoy the fruits of an auspicious
final judgment. Absent any convincing demonstration that the RTC Order is
patently null and void, there is no reason under law and jurisprudence to
upset it, given the reality that it has long become final.
WHEREFORE, the above premises considered, the Petition is hereby
dismissed for lack of merit. Costs against petitioner.
SO ORDERED.

G.R. No. 174689

October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, respondent.
DECISION
CORONA, J.:

When God created man, He made him in the likeness of God; He

created them male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and she
heard voices coming from inside the bamboo. "Oh North Wind! North
Wind! Please let us out!," the voices said. She pecked the reed once,
then twice. All of a sudden, the bamboo cracked and slit open. Out
came two human beings; one was a male and the other was a
female. Amihan named the man "Malakas" (Strong) and the woman
"Maganda" (Beautiful). (The Legend of Malakas and Maganda)
When is a man a man and when is a woman a woman? In particular, does
the law recognize the changes made by a physician using scalpel, drugs and
counseling with regard to a persons sex? May a person successfully petition
for a change of name and sex appearing in the birth certificate to reflect the
result of a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a
petition for the change of his first name and sex in his birth certificate in the
Regional Trial Court of Manila, Branch 8. The petition, docketed as SP Case
No. 02-105207, impleaded the civil registrar of Manila as respondent.

underwent sex reassignment surgery2 in Bangkok, Thailand. He was

thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and
reconstruction surgeon in the Philippines, who issued a medical certificate
attesting that he (petitioner) had in fact undergone the procedure.
From then on, petitioner lived as a female and was in fact engaged to be
married. He then sought to have his name in his birth certificate changed
from "Rommel Jacinto" to "Mely," and his sex from "male" to "female."
An order setting the case for initial hearing was published in the Peoples
Journal Tonight, a newspaper of general circulation in Metro Manila, for three
consecutive weeks.3 Copies of the order were sent to the Office of the
Solicitor General (OSG) and the civil registrar of Manila.
On the scheduled initial hearing, jurisdictional requirements were
established. No opposition to the petition was made.
During trial, petitioner testified for himself. He also presented Dr. ReysioCruz, Jr. and his American fianc, Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision4 in favor of petitioner.
Its relevant portions read:
Petitioner filed the present petition not to evade any law or
judgment or any infraction thereof or for any unlawful motive but
solely for the purpose of making his birth records compatible with his
present sex.
The sole issue here is whether or not petitioner is entitled to the
relief asked for.
The [c]ourt rules in the affirmative.

Petitioner alleged in his petition that he was born in the City of Manila to the
spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4, 1962.
His name was registered as "Rommel Jacinto Dantes Silverio" in his
certificate of live birth (birth certificate). His sex was registered as "male."
He further alleged that he is a male transsexual, that is, "anatomically male
but feels, thinks and acts as a female" and that he had always identified
himself with girls since childhood.1 Feeling trapped in a mans body, he
consulted several doctors in the United States. He underwent psychological
examination, hormone treatment and breast augmentation. His attempts to
transform himself to a "woman" culminated on January 27, 2001 when he

Firstly, the [c]ourt is of the opinion that granting the petition would
be more in consonance with the principles of justice and equity. With
his sexual [re-assignment], petitioner, who has always felt, thought
and acted like a woman, now possesses the physique of a female.
Petitioners misfortune to be trapped in a mans body is not his own
doing and should not be in any way taken against him.
Likewise, the [c]ourt believes that no harm, injury [or] prejudice will
be caused to anybody or the community in granting the petition. On
the contrary, granting the petition would bring the much-awaited

happiness on the part of the petitioner and her [fianc] and the
realization of their dreams.

Petitioner believes that after having acquired the physical features of a

female, he became entitled to the civil registry changes sought. We disagree.

Finally, no evidence was presented to show any cause or ground to

deny the present petition despite due notice and publication thereof.
Even the State, through the [OSG] has not seen fit to interpose any
[o]pposition.

The State has an interest in the names borne by individuals and entities for
purposes of identification.11 A change of name is a privilege, not a
right.12 Petitions for change of name are controlled by statutes.13 In this
connection, Article 376 of the Civil Code provides:

WHEREFORE, judgment is hereby rendered GRANTING the petition

and ordering the Civil Registrar of Manila to change the entries
appearing in the Certificate of Birth of [p]etitioner, specifically for
petitioners first name from "Rommel Jacinto" to MELY and
petitioners gender from "Male" to FEMALE. 5
On August 18, 2003, the Republic of the Philippines (Republic), thru the
OSG, filed a petition for certiorari in the Court of Appeals.6 It alleged that
there is no law allowing the change of entries in the birth certificate by
reason of sex alteration.
On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of
the Republic. It ruled that the trial courts decision lacked legal basis. There
is no law allowing the change of either name or sex in the certificate of birth
on the ground of sex reassignment through surgery. Thus, the Court of
Appeals granted the Republics petition, set aside the decision of the trial
court and ordered the dismissal of SP Case No. 02-105207. Petitioner moved
for reconsideration but it was denied.9 Hence, this petition.
Petitioner essentially claims that the change of his name and sex in his birth
certificate is allowed under Articles 407 to 413 of the Civil Code, Rules 103
and 108 of the Rules of Court and RA 9048.10
The petition lacks merit.
A Persons First Name Cannot Be Changed On the Ground of Sex
Reassignment
Petitioner invoked his sex reassignment as the ground for his petition for
change of name and sex. As found by the trial court:
Petitioner filed the present petition not to evade any law or
judgment or any infraction thereof or for any unlawful motive
but solely for the purpose of making his birth records
compatible with his present sex. (emphasis supplied)

ART. 376. No person can change his name or surname without

judicial authority.
This Civil Code provision was amended by RA 9048 (Clerical Error Law). In
particular, Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical Error and
Change of First Name or Nickname. No entry in a civil register shall
be changed or corrected without a judicial order, except for clerical
or typographical errors and change of first name or nickname which
can be corrected or changed by the concerned city or municipal civil
registrar or consul general in accordance with the provisions of this
Act and its implementing rules and regulations.
RA 9048 now governs the change of first name.14 It vests the power and
authority to entertain petitions for change of first name to the city or
municipal civil registrar or consul general concerned. Under the law,
therefore, jurisdiction over applications for change of first name is now
primarily lodged with the aforementioned administrative officers. The intent
and effect of the law is to exclude the change of first name from the
coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction
of Entries in the Civil Registry) of the Rules of Court, until and unless an
administrative petition for change of name is first filed and subsequently
denied.15 It likewise lays down the corresponding venue,16 form17 and
procedure. In sum, the remedy and the proceedings regulating change of
first name are primarily administrative in nature, not judicial.
RA 9048 likewise provides the grounds for which change of first name may
be allowed:
SECTION 4. Grounds for Change of First Name or Nickname. The
petition for change of first name or nickname may be allowed in any
of the following cases:

(1) The petitioner finds the first name or nickname to be ridiculous,

tainted with dishonor or extremely difficult to write or pronounce;
(2) The new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly known
by that first name or nickname in the community; or
(3) The change will avoid confusion.
Petitioners basis in praying for the change of his first name was his sex
reassignment. He intended to make his first name compatible with the sex
he thought he transformed himself into through surgery. However, a change
of name does not alter ones legal capacity or civil status.18 RA 9048 does not
sanction a change of first name on the ground of sex reassignment. Rather
than avoiding confusion, changing petitioners first name for his declared
purpose may only create grave complications in the civil registry and the
public interest.
Before a person can legally change his given name, he must present proper
or reasonable cause or any compelling reason justifying such change.19 In
addition, he must show that he will be prejudiced by the use of his true and
official name.20 In this case, he failed to show, or even allege, any prejudice
that he might suffer as a result of using his true and official name.
In sum, the petition in the trial court in so far as it prayed for the change of
petitioners first name was not within that courts primary jurisdiction as the
petition should have been filed with the local civil registrar concerned,
assuming it could be legally done. It was an improper remedy because the
proper remedy was administrative, that is, that provided under RA 9048. It
was also filed in the wrong venue as the proper venue was in the Office of
the Civil Registrar of Manila where his birth certificate is kept. More
importantly, it had no merit since the use of his true and official name does
not prejudice him at all. For all these reasons, the Court of Appeals correctly
dismissed petitioners petition in so far as the change of his first name was
concerned.
No Law Allows The Change of Entry In The Birth Certificate As To
Sex On the Ground of Sex Reassignment
The determination of a persons sex appearing in his birth certificate is a
legal issue and the court must look to the statutes.21 In this connection,
Article 412 of the Civil Code provides:

ART. 412. No entry in the civil register shall be changed or corrected

without a judicial order.
Together with Article 376 of the Civil Code, this provision was amended by
RA 9048 in so far as clerical or typographical errors are involved. The
correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In
effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court
the correction of such errors.22 Rule 108 now applies only to substantial
changes and corrections in entries in the civil register.23
Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:
SECTION 2. Definition of Terms. As used in this Act, the following
terms shall mean:
xxx

xxx

xxx

(3) "Clerical or typographical error" refers to a mistake

committed in the performance of clerical work in writing,
copying, transcribing or typing an entry in the civil register
that is harmless and innocuous, such as misspelled name or
misspelled place of birth or the like, which is visible to the
eyes or obvious to the understanding, and can be corrected
or changed only by reference to other existing record or
records: Provided, however, That no correction must
involve the change of nationality, age, status or sex of
the petitioner. (emphasis supplied)
Under RA 9048, a correction in the civil registry involving the change of sex
is not a mere clerical or typographical error. It is a substantial change for
which the applicable procedure is Rule 108 of the Rules of Court.
The entries envisaged in Article 412 of the Civil Code and correctable under
Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of
the Civil Code:24
ART. 407. Acts, events and judicial decrees concerning the civil
status of persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages void
from the beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10) naturalization; (11) loss,
or (12) recovery of citizenship; (13) civil interdiction; (14) judicial
determination of filiation; (15) voluntary emancipation of a minor;
and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the Civil
Code include even those that occur after birth.25 However, no reasonable
interpretation of the provision can justify the conclusion that it covers the
correction on the ground of sex reassignment.
To correct simply means "to make or set aright; to remove the faults or error
from" while to change means "to replace something with something else of
the same kind or with something that serves as a substitute."26 The birth
certificate of petitioner contained no error. All entries therein, including those
corresponding to his first name and sex, were all correct. No correction is
necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry of
certain acts (such as legitimations, acknowledgments of illegitimate children
and naturalization), events (such as births, marriages, naturalization and
deaths) and judicial decrees (such as legal separations, annulments of
marriage, declarations of nullity of marriages, adoptions, naturalization, loss
or recovery of citizenship, civil interdiction, judicial determination of filiation
and changes of name). These acts, events and judicial decrees produce legal
consequences that touch upon the legal capacity, status and nationality of a
person. Their effects are expressly sanctioned by the laws. In contrast, sex
reassignment is not among those acts or events mentioned in Article 407.
Neither is it recognized nor even mentioned by any law, expressly or
impliedly.
"Status" refers to the circumstances affecting the legal situation (that is, the
sum total of capacities and incapacities) of a person in view of his age,
nationality and his family membership.27
The status of a person in law includes all his personal qualities and
relations, more or less permanent in nature, not ordinarily
terminable at his own will, such as his being legitimate or
illegitimate, or his being married or not. The comprehensive
term status include such matters as the beginning and end of legal
personality, capacity to have rights in general, family relations, and

its various aspects, such as birth, legitimation, adoption,

emancipation, marriage, divorce, and sometimes even
succession.28 (emphasis supplied)
A persons sex is an essential factor in marriage and family relations. It is a
part of a persons legal capacity and civil status. In this connection, Article
413 of the Civil Code provides:
ART. 413. All other matters pertaining to the registration of civil
status shall be governed by special laws.
But there is no such special law in the Philippines governing sex
reassignment and its effects. This is fatal to petitioners cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births. The declaration of
the physician or midwife in attendance at the birth or, in default
thereof, the declaration of either parent of the newborn child, shall
be sufficient for the registration of a birth in the civil register. Such
declaration shall be exempt from documentary stamp tax and shall
be sent to the local civil registrar not later than thirty days after the
birth, by the physician or midwife in attendance at the birth or by
either parent of the newborn child.
In such declaration, the person above mentioned shall certify to the
following facts: (a) date and hour of birth; (b) sex and nationality of
infant; (c) names, citizenship and religion of parents or, in case the
father is not known, of the mother alone; (d) civil status of parents;
(e) place where the infant was born; and (f) such other data as may
be required in the regulations to be issued.
xxx

xxx

xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the
facts as they existed at the time of birth.29 Thus, the sex of a person is
determined at birth, visually done by the birth attendant (the physician or
midwife) by examining the genitals of the infant. Considering that there is no
law legally recognizing sex reassignment, the determination of a persons sex
made at the time of his or her birth, if not attended by error,30is immutable.31
When words are not defined in a statute they are to be given their common
and ordinary meaning in the absence of a contrary legislative intent. The

words "sex," "male" and "female" as used in the Civil Register Law and laws
concerning the civil registry (and even all other laws) should therefore be
understood in their common and ordinary usage, there being no legislative
intent to the contrary. In this connection, sex is defined as "the sum of
peculiarities of structure and function that distinguish a male from a
female"32 or "the distinction between male and female."33 Female is "the sex
that produces ova or bears young"34 and male is "the sex that has organs to
produce spermatozoa for fertilizing ova."35 Thus, the words "male" and
"female" in everyday understanding do not include persons who have
undergone sex reassignment. Furthermore, "words that are employed in a
statute which had at the time a well-known meaning are presumed to have
been used in that sense unless the context compels to the contrary."36 Since
the statutory language of the Civil Register Law was enacted in the early
1900s and remains unchanged, it cannot be argued that the term "sex" as
used then is something alterable through surgery or something that allows a
post-operative male-to-female transsexual to be included in the category
"female."
For these reasons, while petitioner may have succeeded in altering his body
and appearance through the intervention of modern surgery, no law
authorizes the change of entry as to sex in the civil registry for that reason.
Thus, there is no legal basis for his petition for the correction or change of
the entries in his birth certificate.
Neither May Entries in the Birth Certificate As to First Name or Sex
Be Changed on the Ground of Equity
The trial court opined that its grant of the petition was in consonance with
the principles of justice and equity. It believed that allowing the petition
would cause no harm, injury or prejudice to anyone. This is wrong.
The changes sought by petitioner will have serious and wide-ranging legal
and public policy consequences. First, even the trial court itself found that
the petition was but petitioners first step towards his eventual marriage to
his male fianc. However, marriage, one of the most sacred social
institutions, is a special contract of permanent union between a man and a
woman.37 One of its essential requisites is the legal capacity of the
contracting parties who must be a male and a female.38 To grant the
changes sought by petitioner will substantially reconfigure and greatly alter
the laws on marriage and family relations. It will allow the union of a man
with another man who has undergone sex reassignment (a male-to-female
post-operative transsexual). Second, there are various laws which apply
particularly to women such as the provisions of the Labor Code on
employment of women,39 certain felonies under the Revised Penal

Code40 and the presumption of survivorship in case of calamities under Rule

131 of the Rules of Court,41 among others. These laws underscore the public
policy in relation to women which could be substantially affected if
petitioners petition were to be granted.
It is true that Article 9 of the Civil Code mandates that "[n]o judge or court
shall decline to render judgment by reason of the silence, obscurity or
insufficiency of the law." However, it is not a license for courts to engage in
judicial legislation. The duty of the courts is to apply or interpret the law, not
to make or amend it.
In our system of government, it is for the legislature, should it choose to do
so, to determine what guidelines should govern the recognition of the effects
of sex reassignment. The need for legislative guidelines becomes particularly
important in this case where the claims asserted are statute-based.
To reiterate, the statutes define who may file petitions for change of first
name and for correction or change of entries in the civil registry, where they
may be filed, what grounds may be invoked, what proof must be presented
and what procedures shall be observed. If the legislature intends to confer
on a person who has undergone sex reassignment the privilege to change
his name and sex to conform with his reassigned sex, it has to enact
legislation laying down the guidelines in turn governing the conferment of
that privilege.
It might be theoretically possible for this Court to write a protocol on when a
person may be recognized as having successfully changed his sex. However,
this Court has no authority to fashion a law on that matter, or on anything
else. The Court cannot enact a law where no law exists. It can only apply or
interpret the written word of its co-equal branch of government, Congress.
Petitioner pleads that "[t]he unfortunates are also entitled to a life of
happiness, contentment and [the] realization of their dreams." No argument
about that. The Court recognizes that there are people whose preferences
and orientation do not fit neatly into the commonly recognized parameters of
social convention and that, at least for them, life is indeed an ordeal.
However, the remedies petitioner seeks involve questions of public policy to
be addressed solely by the legislature, not by the courts.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner. SO ORDERED.

REPUBLIC OF THE PHILIPPINES,

Petitioner,

- versus -

JENNIFER B. CAGANDAHAN,
Respondent.

G.R. No. 166676

where it was discovered that she has small ovaries. At age thirteen, tests
revealed that her ovarian structures had minimized, she has stopped growing
Present:
and she has no breast or menstrual development. She then alleged that for
all interests and appearances as well as in mind and emotion, she has
QUISUMBING, J., Chairperson,
become a male person. Thus, she prayed that her birth certificate be
CARPIO MORALES,
corrected such that her gender be changed from female to male and her first
TINGA,
name be changed from Jennifer to Jeff.
VELASCO, JR., and
BRION, JJ.
The petition was published in a newspaper of general circulation for
three (3) consecutive weeks and was posted in conspicuous places by the
Promulgated:
sheriff of the court. The Solicitor General entered his appearance and
authorized the Assistant Provincial Prosecutor to appear in his behalf.
September 12, 2008

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

QUISUMBING, J.:

DECISION

This is a petition for review under Rule 45 of the Rules of Court raising
purely questions of law and seeking a reversal of the Decision[1] dated January
12, 2005 of the Regional Trial Court (RTC), Branch 33 of Siniloan, Laguna,
which granted the Petition for Correction of Entries in Birth Certificate filed by
Jennifer B. Cagandahan and ordered the following changes of entries in
Cagandahans birth certificate: (1) the name Jennifer Cagandahan changed
to Jeff Cagandahan and (2) gender from female to male.
The facts are as follows.
On December 11, 2003, respondent Jennifer Cagandahan filed a
Petition for Correction of Entries in Birth Certificate[2] before the RTC, Branch
33 of Siniloan, Laguna.
In her petition, she alleged that she was born on January 13,
1981 and was registered as a female in the Certificate of Live Birth but while
growing up, she developed secondary male characteristics and was
diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a condition
where persons thus afflicted possess both male and female
characteristics. She further alleged that she was diagnosed to have clitoral
hyperthropy in her early years and at age six, underwent an ultrasound

To prove her claim, respondent testified and presented the

testimony of Dr. Michael Sionzon of the Department of Psychiatry, University
of the Philippines-Philippine General Hospital. Dr. Sionzon issued a medical
certificate stating that respondents condition is known as CAH. He explained
that genetically respondent is female but because her body secretes male
hormones, her female organs did not develop normally and she has two sex
organs female and male. He testified that this condition is very rare, that
respondents uterus is not fully developed because of lack of female
hormones, and that she has no monthly period. He further testified that
respondents condition is permanent and recommended the change of
gender because respondent has made up her mind, adjusted to her chosen
role as male, and the gender change would be advantageous to her.
The RTC granted respondents petition in a Decision dated January
12, 2005 which reads:
The Court is convinced that petitioner has
satisfactorily shown that he is entitled to the reliefs prayed
[for]. Petitioner has adequately presented to the Court very
clear and convincing proofs for the granting of his
petition. It was medically proven that petitioners body
produces male hormones, and first his body as well as his
action and feelings are that of a male. He has chosen to be
male. He is a normal person and wants to be acknowledged
and identified as a male.
WHEREFORE, premises considered, the Civil Register
of Pakil, Laguna is hereby ordered to make the following
corrections in the birth [c]ertificate of Jennifer Cagandahan
upon payment of the prescribed fees:

a)
By changing the name from Jennifer
Cagandahan to JEFF CAGANDAHAN; and
b)
to MALE.

By changing the gender from female

It is likewise ordered that petitioners school records,

voters registry, baptismal certificate, and other pertinent
records are hereby amended to conform with the foregoing
corrected data.
SO ORDERED.[3]
Thus, this petition by the Office of the Solicitor General (OSG)
seeking a reversal of the abovementioned ruling.
The issues raised by petitioner are:
THE TRIAL COURT ERRED IN GRANTING THE PETITION
CONSIDERING THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE
RULES OF COURT HAVE NOT BEEN COMPLIED WITH; AND,
II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT
ALLOW CHANGE OF SEX OR GENDER IN THE BIRTH
CERTIFICATE, WHILE RESPONDENTS MEDICAL CONDITION,
i.e., CONGENITAL ADRENAL HYPERPLASIA DOES NOT MAKE
HER A MALE.[4]
Simply stated, the issue is whether the trial court erred in ordering
the correction of entries in the birth certificate of respondent to change her
sex or gender, from female to male, on the ground of her medical condition
known as CAH, and her name from Jennifer to Jeff, under Rules 103 and
108 of the Rules of Court.
The OSG contends that the petition below is fatally defective for
non-compliance with Rules 103 and 108 of the Rules of Court because while
the local civil registrar is an indispensable party in a petition for cancellation

or correction of entries under Section 3, Rule 108 of the Rules of Court,

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

Rule 103
CHANGE OF NAME
SECTION 1. Venue. A person desiring to change
his name shall present the petition to the Regional Trial
Court of the province in which he resides, [or, in the City
of Manila, to the Juvenile and Domestic Relations Court].
SEC. 2. Contents of petition. A petition for change
of name shall be signed and verified by the person desiring
his name changed, or some other person on his behalf, and
shall set forth:
(a)
That the petitioner has been a bona
fide resident of the province where the petition is
filed for at least three (3) years prior to the date of
such filing;

(b)
The cause for which the change of the
petitioner's name is sought;

Trial Court of the province where the corresponding civil

registry is located.

(c)

SEC. 2. Entries subject to cancellation or correction.

Upon good and valid grounds, the following entries in the
civil register may be cancelled or corrected: (a) births; (b)
marriages; (c) deaths; (d) legal separations; (e) judgments
of annulments of marriage; (f) judgments declaring
marriages void from the beginning; (g) legitimations; (h)
adoptions; (i) acknowledgments of natural children; (j)
naturalization; (k) election, loss or recovery of citizenship; (l)
civil interdiction; (m) judicial determination of filiation; (n)
voluntary emancipation of a minor; and (o) changes of
name.

The name asked for.

SEC. 3. Order for hearing. If the petition filed is

sufficient in form and substance, the court, by an order
reciting the purpose of the petition, shall fix a date and place
for the hearing thereof, and shall direct that a copy of the
order be published before the hearing at least once a week
for three (3) successive weeks in some newspaper of
general circulation published in the province, as the court
shall deem best. The date set for the hearing shall not be
within thirty (30) days prior to an election nor within four (4)
months after the last publication of the notice.
SEC. 4. Hearing. Any interested person may
appear at the hearing and oppose the petition. The Solicitor
General or the proper provincial or city fiscal shall appear on
behalf of the Government of the Republic.
SEC. 5. Judgment. Upon satisfactory proof in open
court on the date fixed in the order that such order has been
published as directed and that the allegations of the petition
are true, the court shall, if proper and reasonable cause
appears for changing the name of the petitioner, adjudge
that such name be changed in accordance with the prayer of
the petition.
SEC. 6. Service of judgment. Judgments or orders
rendered in connection with this rule shall be furnished the
civil registrar of the municipality or city where the court
issuing the same is situated, who shall forthwith enter the
same in the civil register.
Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
SECTION 1. Who may file petition. Any person
interested in any act, event, order or decree concerning the
civil status of persons which has been recorded in the civil
register, may file a verified petition for the cancellation or
correction of any entry relating thereto, with the Regional

SEC. 3. Parties. When cancellation or correction of

an entry in the civil register is sought, the civil registrar and
all persons who have or claim any interest which would be
affected thereby shall be made parties to the proceeding.
SEC. 4. Notice and publication. Upon the filing of
the petition, the court shall, by an order, fix the time and
place for the hearing of the same, and cause reasonable
notice thereof to be given to the persons named in the
petition. The court shall also cause the order to be published
once a week for three (3) consecutive weeks in a newspaper
of general circulation in the province.
SEC. 5. Opposition. The civil registrar and any
person having or claiming any interest under the entry
whose cancellation or correction is sought may, within
fifteen (15) days from notice of the petition, or from the last
date of publication of such notice, file his opposition thereto.
SEC. 6. Expediting proceedings. The court in
which the proceedings is brought may make orders
expediting the proceedings, and may also grant preliminary
injunction for the preservation of the rights of the parties
pending such proceedings.
SEC. 7. Order. After hearing, the court may either
dismiss the petition or issue an order granting the
cancellation or correction prayed for. In either case, a
certified copy of the judgment shall be served upon the civil

registrar concerned who shall annotate the same in his

record.
The OSG argues that the petition below is fatally defective for noncompliance with Rules 103 and 108 of the Rules of Court because
respondents petition did not implead the local civil registrar. Section 3, Rule
108 provides that the civil registrar and all persons who have or claim any
interest which would be affected thereby shall be made parties to the
proceedings. Likewise, the local civil registrar is required to be made a party
in a proceeding for the correction of name in the civil registry. He is an
indispensable party without whom no final determination of the case can be
had.[12] Unless all possible indispensable parties were duly notified of the
proceedings, the same shall be considered as falling much too short of the
requirements of the rules.[13] The corresponding petition should also
implead as respondents the civil registrar and all other persons who may
have or may claim to have any interest that would be affected
thereby.[14] Respondent, however, invokes Section 6,[15] Rule 1 of the Rules
of Court which states that courts shall construe the Rules liberally to promote
their objectives of securing to the parties a just, speedy and inexpensive
disposition of the matters brought before it. We agree that there is
substantial compliance with Rule 108 when respondent furnished a copy of
the petition to the local civil registrar.
The determination of a persons sex appearing in his birth certificate
is a legal issue and the court must look to the statutes. In this connection,
Article 412 of the Civil Code provides:
ART. 412. No entry in a civil register shall be changed or
corrected without a judicial order.
Together with Article 376[16] of the Civil Code, this provision was
amended by Republic Act No. 9048[17] in so far as clerical or
typographical errors are involved. The correction or change of such matters
can now be made through administrative proceedings and without the need
for a judicial order. In effect, Rep. Act No. 9048 removed from the ambit of
Rule 108 of the Rules of Court the correction of such errors. Rule 108 now
applies only to substantial changes and corrections in entries in the civil
register.[18]
Under Rep. Act No. 9048, a correction in the civil registry involving
the change of sex is not a mere clerical or typographical error. It is a

substantial change for which the applicable procedure is Rule 108 of the
Rules of Court.[19]
The entries envisaged in Article 412 of the Civil Code and correctable
under Rule 108 of the Rules of Court are those provided in Articles 407 and
408 of the Civil Code:
ART. 407. Acts, events and judicial decrees concerning the
civil status of persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations;
(5) annulments of marriage; (6) judgments declaring
marriages void from the beginning; (7) legitimations; (8)
adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship; (13)
civil interdiction; (14) judicial determination of filiation; (15)
voluntary emancipation of a minor; and (16) changes of
name.
The acts, events or factual errors contemplated under Article 407 of
the Civil Code include even those that occur after birth.[20]
Respondent undisputedly has CAH. This condition causes the early or
inappropriate appearance of male characteristics. A person, like
respondent, with this condition produces too much androgen, a male
hormone. A newborn who has XX chromosomes coupled with CAH usually
has a (1) swollen clitoris with the urethral opening at the base, an
ambiguous genitalia often appearing more male than female; (2) normal
internal structures of the female reproductive tract such as the ovaries,
uterus and fallopian tubes; as the child grows older, some features start to
appear male, such as deepening of the voice, facial hair, and failure to
menstruateat puberty. About 1 in 10,000 to 18,000 children are born with
CAH.
CAH is one of many conditions[21] that involve intersex anatomy.
During the twentieth century, medicine adopted the term intersexuality to
apply to human beings who cannot be classified as either male or
female.[22] The
term
is
now
of
widespread
use. According
to Wikipedia, intersexuality is
the
state
of
a
living
thing
of
a gonochoristic species whose sex chromosomes, genitalia, and/or secondary

sex characteristics are determined to be neither exclusively male nor

female. An organism with intersex may have biological characteristics of both
male and female sexes.
Intersex individuals are treated in different ways by different
cultures. In most societies, intersex individuals have been expected to
conform to either a male or female gender role.[23] Since the rise of modern
medical science in Western societies, some intersex people with ambiguous
external genitalia have had their genitalia surgically modified to resemble
either male or female genitals.[24] More commonly, an intersex individual is
considered as suffering from a disorder which is almost always
recommended to be treated, whether by surgery and/or by taking lifetime
medication in order to mold the individual as neatly as possible into the
category of either male or female.
In deciding this case, we consider the compassionate calls for
recognition of the various degrees of intersex as variations which should not
be subject to outright denial. It has been suggested that there is some
middle ground between the sexes, a no-mans land for those individuals
who are neither truly male nor truly female.[25] The current state of
Philippine statutes apparently compels that a person be classified either as a
male or as a female, but this Court is not controlled by mere appearances
when nature itself fundamentally negates such rigid classification.
In the instant case, if we determine respondent to be a female, then
there is no basis for a change in the birth certificate entry for gender. But if
we determine, based on medical testimony and scientific development
showing the respondent to be other than female, then a change in t
he
subjects birth certificate entry is in order.
Biologically, nature endowed respondent with a mixed (neither
consistently and categorically female nor consistently and categorically male)
composition. Respondent has female (XX) chromosomes. However,
respondents body system naturally produces high levels of male hormones
(androgen). As a result, respondent has ambiguous genitalia and the
phenotypic features of a male.
Ultimately, we are of the view that where the person is biologically
or naturally intersex the determining factor in his gender classification would

be what the individual, like respondent, having reached the age of majority,
with good reason thinks of his/her sex. Respondent here thinks of himself as
a male and considering that his body produces high levels of male hormones
(androgen) there is preponderant biological support for considering him as
being male. Sexual development in cases of intersex persons makes the
gender classification at birth inconclusive. It is at maturity that the gender of
such persons, like respondent, is fixed.
Respondent here has simply let nature take its course and has not
taken unnatural steps to arrest or interfere with what he was born with. And
accordingly, he has already ordered his life to that of a male. Respondent
could have undergone treatment and taken steps, like taking lifelong
medication,[26] to force his body into the categorical mold of a female but he
did not. He chose not to do so. Nature has instead taken its due course in
respondents development to reveal more fully his male characteristics.
In the absence of a law on the matter, the Court will not dictate on
respondent concerning a matter so innately private as ones sexuality and
lifestyle preferences, much less on whether or not to undergo medical
treatment to reverse the male tendency due to CAH. The Court will not
consider respondent as having erred in not choosing to undergo treatment in
order to become or remain as a female. Neither will the Court force
respondent to undergo treatment and to take medication in order to fit the
mold of a female, as society commonly currently knows this gender of the
human species. Respondent is the one who has to live with
his intersex anatomy. To him belongs the human right to the pursuit of
happiness and of health. Thus, to him should belong the primordial choice
of what courses of action to take along the path of his sexual development
and maturation. In the absence of evidence that respondent is an
incompetent[27] and in the absence of evidence to show that classifying
respondent as a male will harm other members of society who are equally
entitled to protection under the law, the Court affirms as valid and justified
the respondents position and his personal judgment of being a male.
In so ruling we do no more than give respect to (1) the diversity of
nature; and (2) how an individual deals with what nature has handed
out. In other words, we respect respondents congenital condition and his
mature decision to be a male. Life is already difficult for the ordinary
person. We
cannot
but
respect
how
respondent
deals
with
his unordinary state and thus help make his life easier, considering the
unique circumstances in this case.

As for respondents change of name under Rule 103, this Court has
held that a change of name is not a matter of right but of judicial discretion,
to be exercised in the light of the reasons adduced and the consequences
that will follow.[28] The trial courts grant of respondents change of name
from Jennifer to Jeff implies a change of a feminine name to a masculine
name. Considering the consequence that respondents change of name
merely recognizes his preferred gender, we find merit in respondents
change of name. Such a change will conform with the change of the entry in
his birth certificate from female to male.
WHEREFORE, the Republics petition is DENIED. The Decision
dated January 12, 2005 of the Regional Trial Court, Branch 33 of Siniloan,
Laguna, isAFFIRMED. No pronouncement as to costs.
SO ORDERED.

[G.R. No. 164041. July 29, 2005]

ROSENDO ALBA, minor, represented by his mother and natural

guardian, Armi A. Alba, and ARMI A. ALBA, in her personal
capacity, petitioners, vs. COURT OF APPEALS and ROSENDO
C. HERRERA, respondents.
DECISION
YNARES-SANTIAGO, J.:
[1]

Assailed in this petition for certiorari are the February 27, 2004
decision[2] and the May 14, 2004 resolution[3] of the Court of Appeals in CAG.R. SP No. 61883, which dismissed petitioners original action for annulment
of judgment[4] of the Regional Trial Court of Manila, Branch 37, and denied
the motion for reconsideration, respectively.
The antecedent facts show that on October 21, 1996, private
respondent Rosendo C. Herrera filed a petition[5] for cancellation of the
following entries in the birth certificate of Rosendo Alba Herrera, Jr., to wit:
(1) the surname Herrera as appended to the name of said child; (2) the
reference to private respondent as the father of Rosendo Alba Herrera, Jr.;
and (3) the alleged marriage of private respondent to the childs mother,
Armi A. Alba (Armi) on August 4, 1982 in Mandaluyong City. He claimed that
the challenged entries are false and that it was only sometime in September
1996 that he learned of the existence of said birth certificate.
Private respondent alleged that he married only once, i.e., on June 28,
1965 with Ezperanza C. Santos and never contracted marriage with Armi nor
fathered Rosendo Alba Herrera, Jr. In support thereof, he presented
certifications from the Civil Registrar of Mandaluyong City[6] and the National
Statistics Office,[7] both stating that they have no record of marriage
between private respondent and Armi.
On November 12, 1996, private respondent filed an amended
petition,[8] impleading Armi and all the persons who have or claim any
interest in th[e] petition.[9]
On November 27, 1996, the trial court issued an Order setting the
petition for hearing on January 24, 1997, and directed the publication and
service of said order to Armi at her address appearing in the birth certificate
which is No. 418 Arquiza St., Ermita, Manila, and to the Civil Registrar of the
City of Manila and the Solicitor General. The full text of the order, reads:

In a verified Amended Petition for Correction of Entry, the Petitioner

prays, inter alia, that the following entries appearing in the subject Certificate
of Live Birth be deleted:
1.
All informations having reference to him as the father of the child
mentioned therein;
2.

The surname Herrera appended to the childs name;

3.

His alleged marriage with the natural mother of the child.

Finding the Petition to be sufficient in form and substance, let the Petition be
set for hearing on January 24, 1997 at nine oclock in the morning before
this Branch at Rooms 447-449, Fourth Floor, Manila City Hall. All interested
parties are hereby notified of the said hearing and are ordered to show
cause why the Petition should not be granted.
Let a copy of this Order be published at the expense of the Petitioner, once a
week for three (3) consecutive weeks, in a newspaper of general circulation
in the City of Manila, and raffled pursuant to P.D. 1079.
Furnish the Office of the Solicitor General and the Office of the Local Civil
Registrar of the City of Manila with copies of the Petition and of this Order.
Let the same be likewise furnished the Private Respondent Armi Alba Herrera
at the address indicated in the subject Certificate of Live Birth.
SO ORDERED.[10]
On January 13, 1997, before the scheduled January 24, 1997 hearing,
the trial court issued an Amended Order[11] with substantially the same
contents, except that the hearing was re-scheduled to February 26, 1997. A
copy of said Amended Order was published in Today, a newspaper of
general circulation in Manila in its January 20, 27, and February 3, 1997
issues. Copies thereof were also sent to Armi at No. 418 Arquiza St., Ermita,
Manila, on January 17, 1997, the Local Civil Registrar of Manila and the
Solicitor General.
At the scheduled hearing on February 26, 1997, the counsel from the
Office of the Solicitor General appeared but filed no opposition to the
petition. Armi, on the other hand was not present. The return of the notice
sent to her had the following notation:

This is to certify that on January 17, 1997, the undersigned [process server]
personally served a copy of the Amended Order in Sp. Proc. No. 96-80512
dated January 13, 1997 to the private respondent, Armi Alba Herrera at
418 Arquiza St., Ermita, Manila, but failed and unavailing for reason
that (sic), private respondent is no longer residing at said given
address.[12]
On April 1, 1997, the court a quo rendered a decision which became
final and executory on June 2, 1997.[13] The dispositive portion thereof,
states:
ACCORDINGLY, and pursuant to Rule 108 of the Revised Rules of Court,
judgment is hereby rendered ordering the correction of the entries in the
Certificate of Live Birth of Rosendo Alba Herrera, Jr., in such a way that the
entry under the name of the child, the surname Herrera, Jr.[,] is ordered
deleted, and the child shall be known as ROSENDO ALBA; and that the entry
under the date and place of marriage, the date August 4, 1982,
Mandaluyong, MM is likewise ordered deleted or cancelled.

to know of the decision of the trial court only on February 26, 1998, when
San Beda College, where her son was enrolled as a high school student, was
furnished by private respondent with a copy of a court order directing the
change of petitioner minors surname from Herrera to Alba.
Armi averred that private respondent was aware that her address is at
Unit 302 Plaza Towers Condominium, 1175 Lorenzo Guerrero St., Ermita,
Manila, because such was her residence when she and private respondent
cohabited as husband and wife from 1982 to 1988; and her abode when
petitioner minor was born on March 8, 1985. Even after their separation,
private respondent continued to give support to their son until 1998; and
that Unit 302 was conveyed to her by private respondent on June 14, 1991
as part of his support to petitioner minor. According to Armi, her
address i.e., No. 418 Arquiza St., Ermita, Manila, as appearing in the birth
certificate of their son, was entered in said certificate through the erroneous
information given by her sister, Corazon Espiritu. She stressed that private
respondent knew all along that No. 418 Arquiza St., is the residence of her
sister and that he deliberately caused the service of notice therein to prevent
her from opposing the petition.

Let a copy of this Decision be furnished the Local Civil Registrar of Manila for
proper correction and entry.

In his answer, private respondent denied paternity of petitioner minor

and his purported cohabitation with Armi. He branded the allegations of the
latter as false statements coming from a polluted source.[17]

SO ORDERED.[14]

On February 27, 2004, the Court of Appeals dismissed the petition

holding, among others, that petitioner failed to prove that private respondent
employed fraud and purposely deprived them of their day in court. It further
held that as an illegitimate child, petitioner minor should bear the surname of
his mother.[18] Petitioners filed a motion for reconsideration but was denied.

Private respondent filed a motion[15] for amendment of the decretal

portion of the decision to include the cancellation of all entries having
reference to him as the father of petitioner minor. This was granted in the
August 11, 1997 order of the trial court as follows:
ACCORDINGLY, and pursuant to Rule 108 of the Revised Rules of Court,
judgment is hereby rendered ordering the correction of the entries in the
Certificate of Live Birth of Rosendo Alba Herrera, Jr., in such a way that the
entries under the name of the child, the surname Herrera, Jr., and the name
of the father Rosendo Caparas Herrera are ordered deleted, and the child
shall be known as ROSENDO ALBA; and the entry under the date and place
of marriage, the date August 4, 1982, Mandaluyong, MM is likewise ordered
deleted or cancelled.
SO ORDERED.[16]
On November 24, 2000, Armi and petitioner minor filed a petition for
annulment of judgment before the Court of Appeals on the grounds of
extrinsic fraud and lack of jurisdiction over their person. She allegedly came

Hence, the instant petition.

Under Section 2, Rule 47 of the 1997 Revised Rules of Civil Procedure,
judgments may be annulled on the grounds of lack of jurisdiction and
extrinsic fraud.[19]
Whether or not the trial court acquired jurisdiction over the person of
petitioner and her minor child depends on the nature of private respondents
action, that is, in personam, in remor quasi in rem. An action in personam is
lodged against a person based on personal liability; an action in rem is
directed against the thing itself instead of the person; while an actionquasi in
rem names a person as defendant, but its object is to subject that persons
interest in a property to a corresponding lien or obligation.[20]
Hence, petitions directed against the thing itself or the res,[21] which
concerns the status of a person,[22] like a petition for adoption,[23] annulment

of marriage,[24] or correction of entries in the birth certificate,[25] as in the

instant case, are actions in rem.
In an action in personam, jurisdiction over the person of the defendant
is necessary for the court to validly try and decide the case. In a
proceeding in rem or quasi in rem, jurisdictionover the person of the
defendant is not a prerequisite to confer jurisdiction on the court, provided
that the latter has jurisdiction over the res. Jurisdiction over the res is
acquired either (a) by the seizure of the property under legal process,
whereby it is brought into actual custody of the law; or (b) as a result of the
institution of legal proceedings, in which the power of the court is recognized
and made effective.[26] The service of summons or notice to the defendant is
not for the purpose of vesting the court with jurisdiction but merely for
satisfying the due process requirements.[27]
In the case at bar, the filing with the trial court of the petition for
cancellation vested the latter jurisdiction over the res. Substantial
corrections or cancellations of entries in civil registry records affecting the
status or legitimacy of a person may be effected through the institution of a
petition under Rule 108 of the Revised Rules of Court, with the proper
Regional Trial Court.[28] Being a proceeding in rem, acquisition of jurisdiction
over the person of petitioner is therefore not required in the present case. It
is enough that the trial court is vested with jurisdiction over the subject
matter.
The service of the order at No. 418 Arquiza St., Ermita, Manila and the
publication thereof in a newspaper of general circulation in Manila,
sufficiently complied with the requirement of due process, the essence of
which is an opportunity to be heard. Said address appeared in the birth
certificate of petitioner minor as the residence of Armi. Considering that the
Certificate of Birth bears her signature, the entries appearing therein are
presumed to have been entered with her approval. Moreover, the
publication of the order is a notice to all indispensable parties, including Armi
and petitioner minor, which binds the whole world to the judgment that may
be rendered in the petition. An in rem proceeding is validated essentially
through publication.[29] The absence of personal service of the order to Armi
was therefore cured by the trial courts compliance with Section 4, Rule 108,
which requires notice by publication, thus:
SEC. 4. Notice and publication. Upon the filing of the petition, the court
shall, by an order, fix the time and place for the hearing of the same, and
cause reasonable notice thereof to be given to the persons named in the
petition. The court shall also cause the order to be published once a week for
three (3) consecutive weeks in a newspaper of general circulation in the
province.

In Barco v. Court of Appeals, the trial court granted a petition for

correction/change of entries in a minors birth certificate to reflect the name
of the minors real father as well as to effect the corresponding change of
her surname. In seeking to annul said decision, the other children of the
alleged father claimed that they are indispensable parties to the petition for
correction, hence, the failure to implead them is a ground to annul the
decision of the trial court. The Court of Appeals denied the petition which
was sustained by this Court on the ground, inter alia, that while petitioner is
indeed an indispensable party, the failure to implead her was cured by the
publication of the order of hearing. Thus
Undoubtedly, Barco is among the parties referred to in Section 3 of Rule 108.
Her interest was affected by the petition for correction, as any judicial
determination that June was the daughter of Armando would affect her
wards share in the estate of her father. It cannot be established whether
Nadina knew of Mary Joys existence at the time she filed the petition for
correction. Indeed, doubt may always be cast as to whether a petitioner
under Rule 108 would know of all the parties whose interests may be
affected by the granting of a petition. For example, a petitioner cannot be
presumed to be aware of all the legitimate or illegitimate offsprings of
his/her spouse or paramour. The fact that Nadina amended her petition to
implead Francisco and Gustilo indicates earnest effort on her part to comply
with Section 3 as quoted above.
Yet, even though Barco was not impleaded in the petition, the Court of
Appeals correctly pointed out that the defect was cured by compliance with
Section 4, Rule 108, which requires notice by publication, thus:
Section 4. Upon the filing of the petition, the court shall, by order, fix the
time and place for the hearing of the same, and cause reasonable notice
thereof to be given to the persons named in the petition. The court shall also
cause the order to be published once a week for three (3) consecutive weeks
in a newspaper of general circulation in the province.
The purpose precisely of Section 4, Rule 108 is to bind the whole
world to the subsequent judgment on the petition. The sweep of
the decision would cover even parties who should have been
impleaded under Section 3, Rule 108, but were inadvertently left
out. The Court of Appeals correctly noted:
The publication being ordered was in compliance with, and borne out by the
Order of January 7, 1985. The actual publication of the September 22, 1983
Order, conferred jurisdiction upon the respondent court to try and decide the

case. While nobody appeared to oppose the instant petition during the
December 6, 1984 hearing, that did not divest the court from its jurisdiction
over the case and of its authority to continue trying the case. For, the rule is
well-settled, that jurisdiction, once acquired continues until termination of
the case.
Verily, a petition for correction is an action in rem, an action against a thing
and not against a person. The decision on the petition binds not only the
parties thereto but the whole world. An in remproceeding is validated
essentially through publication. Publication is notice to the whole world that
the proceeding has for its object to bar indefinitely all who might be minded
to make an objection of any sort against the right sought to be established.
It is the publication of such notice that brings in the whole world as a party
in the case and vests the court with jurisdiction to hear and decide it.[30]
Furthermore, extrinsic fraud, which was private respondents alleged
concealment of Armis present address, was not proven. Extrinsic fraud
exists when there is a fraudulent act committed by the prevailing party
outside of the trial of the case, whereby the defeated party was prevented
from presenting fully his side of the case by fraud or deception practiced on
him by the prevailing party. Here, Armi contended that private respondent is
aware of her present address because they lived together as husband and
wife in the condominium unit from 1982 to 1988 and because private
respondent continued to give support to their son until 1998. To prove her
claim, she presented (1) private respondents title over the condominium
unit; (2) receipts allegedly issued to private respondent for payment of
homeowners or association dues; (2) a photocopy of a January 14, 1991
deed of sale of the subject unit in favor of Armi; and (3) the subsequent title
issued to the latter. However, these documents only tend to prove private
respondents previous ownership of the unit and the subsequent transfer
thereof to Armi, but not the claimed live-in relationship of the
parties. Neither does the sale prove that the conveyance of the unit was
part of private respondents support to petitioner minor. Indeed, intimate
relationships and family relations cannot be inferred from what appears to be
an ordinary business transaction.
Although the January 14, 1991 deed of sale[31] stated that Armi resides
at 1175 L. Guerrero St., Ermita, Manila, the same is not sufficient to prove
that private respondent has knowledge of Armis address because the former
objected to the offer of the deed for being a mere photocopy.[32] The counsel
for petitioners even admitted that they do not have the original of the deed
and that per certification of the Clerk of Court, the Notary Public who
notarized the deed of sale did not submit a copy of the notarized document
as required by the rules.[33] The deed cannot thus be the basis of ascribing

knowledge of Armis address to private respondent inasmuch as the

authenticity thereof was neither admitted by private respondent nor proven
by petitioners.
While Armi presented the alleged love letters/notes from private
respondent, they were only attached as annexes to the petition and not
formally offered as evidence before the Court of Appeals. More importantly,
said letters/notes do not have probative value because they were mere
photocopies and never proven to be an authentic writing of private
respondent. In the same vein, the affidavits[34] of Armi and her sister,
Corazon Espiritu, are of no evidentiary weight. The basic rule of evidence is
that unless the affiants themselves are placed on the witness stand to testify
on their affidavits, such affidavits must be rejected for being hearsay. Stated
differently, the declarants of written statements pertaining to disputed facts
must be presented at the trial for cross-examination.[35] Inasmuch as Armi
and her sister were not presented before the Court of Appeals to affirm the
veracity of their affidavits, the same are considered hearsay and without
probative value.

Ei incumbit probotio qui dicit, non qui negat. He who asserts, not he
who denies, must prove.[36] Armis claim that private respondent is aware of
her present address is anchored on the assertion of a live-in relationship and
support to her son. Since the evidence presented by Armi is not sufficient to
prove the purported cohabitation and support, it follows that private
respondents knowledge of Armis address was likewise not proven. Thus,
private respondent could not have deliberately concealed from the court that
which was not shown to be known to him. The Court of Appeals therefore
correctly dismissed the petition for annulment of judgment on the ground of
failure to establish extrinsic fraud.
The proper remedy of a party aggrieved by a decision of the Court of
Appeals in an action to annul a judgment of a Regional Trial Court is a
petition for review on certiorari under Rule 45 of the Revised Rules of Civil
Procedure, where only questions of law may be raised. The resort of
petitioner to the instant civil action for certiorari under Rule 65 is therefore
erroneous. The special civil action of certiorari will not be allowed as a
substitute for failure to timely file a petition for review under Rule 45, which
should be instituted within 15 days[37]from receipt of the assailed decision or
resolution. The wrong choice of remedy thus provides another reason to
dismiss this petition.[38]
Finally, petitioner failed to establish the merits of her petition to annul
the trial courts decision. In an action for annulment of judgment, the
petitioner must convince the court that something may indeed be achieved
should the assailed decision be annulled.[39] Under Article 176[40] of the
Family Code as amended by Republic Act (RA) No. 9255, which took effect

on March 19, 2004, illegitimate children shall use the surname of their
mother, unless their father recognizes their filiation, in which case they may
bear the fathers surname. In Wang v. Cebu Civil Registrar,[41] it was held
that an illegitimate child whose filiation is not recognized by the father, bears
only a given name and his mothers surname. The name of the
unrecognized illegitimate child identifies him as such. It is only when said
child is recognized that he may use his fathers surname, reflecting his status
as an acknowledged illegitimate child.
In the present case, it is clear from the allegations of Armi that
petitioner minor is an illegitimate child because she was never married to
private respondent. Considering that the latter strongly asserts that he is not
the father of petitioner minor, the latter is therefore an unrecognized
illegitimate child. As such, he must bear the surname of his mother.
In sum, the substantive and procedural aspects of the instant
controversy do not warrant the annulment of the trial courts decision.
WHEREFORE, the petition is DISMISSED. The February 27, 2004
decision and the May 14, 2004 resolution of the Court of Appeals in CA-G.R.
SP No. 61883 are AFFIRMED.
SO ORDERED.

G.R. No. 86355 May 31, 1990

JOSE MODEQUILLO, petitioner,
vs.
HON. AUGUSTO V. BREVA FRANCISCO SALINAS, FLORIPER
ABELLAN-SALINAS, JUANITO CULAN-CULAN and DEPUTY SHERIFF
FERNANDO PLATA respondents.

c. the sum of P5,000.00 as burial expenses of Audie Salinas;

and
d. the sum of P5,000.00 by way of moral damages.
2. Plaintiffs-appellants Culan-Culan:

Josefina Brandares-Almazan for petitioner.

a. the sum of P5,000.00 for hospitalization expenses of

Renato Culan- Culan; and

ABC Law Offices for private respondents.

b. P5,000.00 for moral damages.

GANCAYCO, J.:

3. Both plaintiff-appellants Salinas and Culan-Culan,

P7,000.00 for attorney's fees and litigation expenses.
All counterclaims and other claims are hereby dismissed.

The issue in this petition is whether or not a final judgment of the Court of
Appeals in an action for damages may be satisfied by way of execution of a
family home constituted under the Family Code.
The facts are undisputed.
On January 29, 1988, a judgment was rendered by the Court of Appeals in
CA-G.R. CV No. 09218 entitled"Francisco Salinas, et al. vs. Jose Modequillo,
et al.," the dispositive part of which read as follows:
WHEREFORE, the decision under appeal should be, as it is
hereby, reversed and set aside. Judgment is hereby
rendered finding the defendants-appellees Jose Modequillo
and Benito Malubay jointly and severally liable to plaintiffsappellants as hereinbelow set forth. Accordingly, defendantsappellees are ordered to pay jointly and severally to:
1. Plaintiffs-appellants, the Salinas spouses:
a. the amount of P30,000.00 by way of compensation for the
death of their son Audie Salinas;
b. P10,000.00 for the loss of earnings by reason of the death
of said Audie Salinas;

The said judgment having become final and executory, a writ of execution
was issued by the Regional Trial Court of Davao City to satisfy the said
judgment on the goods and chattels of the defendants Jose Modequillo and
Benito Malubay at Malalag, Davao del Sur.
On July 7, 1988, the sheriff levied on a parcel of residential land located at
Poblacion Malalag, Davao del Sur containing an area of 600 square meters
with a market value of P34,550.00 and assessed value of P7,570.00 per Tax
Declaration No. 87008-01359, registered in the name of Jose Modequillo in
the office of the Provincial Assessor of Davao del Sur; and a parcel of
agricultural land located at Dalagbong Bulacan, Malalag, Davao del Sur
containing an area of 3 hectares with a market value of P24,130.00 and
assessed value of P9,650.00 per Tax Declaration No. 87-08-01848 registered
in the name of Jose Modequillo in the office of the Provincial Assessor of
Davao del Sur. 2
A motion to quash and/or to set aside levy of execution was filed by
defendant Jose Modequillo alleging therein that the residential land located
at Poblacion Malalag is where the family home is built since 1969 prior to the
commencement of this case and as such is exempt from execution, forced
sale or attachment under Articles 152 and 153 of the Family Code except for
liabilities mentioned in Article 155 thereof, and that the judgment debt
sought to be enforced against the family home of defendant is not one of
those enumerated under Article 155 of the Family Code. As to the
agricultural land although it is declared in the name of defendant it is alleged
to be still part of the public land and the transfer in his favor by the original

possessor and applicant who was a member of a cultural minority was not
approved by the proper government agency. An opposition thereto was filed
by the plaintiffs.
In an order dated August 26, 1988, the trial court denied the motion. A
motion for reconsideration thereof was filed by defendant and this was
denied for lack of merit on September 2, 1988.
Hence, the herein petition for review on certiorari wherein it is alleged that
the trial court erred and acted in excess of its jurisdiction in denying
petitioner's motion to quash and/or to set aside levy on the properties and in
denying petitioner' motion for reconsideration of the order dated August 26,
1988. Petitioner contends that only a question of law is involved in this
petition. He asserts that the residential house and lot was first occupied as
his family residence in 1969 and was duly constituted as a family home
under the Family Code which took effect on August 4, 1988. Thus, petitioner
argues that the said residential house and lot is exempt from payment of the
obligation enumerated in Article 155 of the Family Code; and that the
decision in this case pertaining to damages arising from a vehicular accident
took place on March 16, 1976 and which became final in 1988 is not one of
those instances enumerated under Article 155 of the Family Code when the
family home may be levied upon and sold on execution. It is further alleged
that the trial court erred in holding that the said house and lot became a
family home only on August 4, 1988 when the Family Code became effective,
and that the Family Code cannot be interpreted in such a way that all family
residences are deemed to have been constituted as family homes at the time
of their occupancy prior to the effectivity of the said Code and that they are
exempt from execution for the payment of obligations incurred before the
effectivity of said Code; and that it also erred when it declared that Article
162 of the Family Code does not state that the provisions of Chapter 2, Title
V have a retroactive effect.
Articles 152 and 153 of the Family Code provide as follows:
Art. 152. The family home, constituted jointly by the
husband and the wife or by an unmarried head of a family,
is the dwelling house where they and their family reside, and
the land on which it is situated.
Art. 153. The family home is deemed constituted on a house
and lot from the time it is occupied as a family residence.
From the time of its constitution and so long as any of its
beneficiaries actually resides therein, the family home

continues to be such and is exempt from execution, forced

sale or attachment except as hereinafter provided and to the
extent of the value allowed by law.
Under the Family Code, a family home is deemed constituted on a house and
lot from the time it is occupied as a family residence. There is no need to
constitute the same judicially or extrajudicially as required in the Civil Code.
If the family actually resides in the premises, it is, therefore, a family home
as contemplated by law. Thus, the creditors should take the necessary
precautions to protect their interest before extending credit to the spouses or
head of the family who owns the home.
Article 155 of the Family Code also provides as follows:
Art. 155. The family home shall be exempt from execution,
forced sale or attachment except:
(1) For non-payment of taxes;
(2) For debts incurred prior to the constitution of the family
home;
(3) For debts secured by mortgages on the premises before
or after such constitution; and
(4) For debts due to laborers, mechanics, architects,
builders, material men and others who have rendered
service or furnished material for the construction of the
building.
The exemption provided as aforestated is effective from the time of the
constitution of the family home as such, and lasts so long as any of its
beneficiaries actually resides therein.
In the present case, the residential house and lot of petitioner was not
constituted as a family home whether judicially or extrajudicially under the
Civil Code. It became a family home by operation of law only under Article
153 of the Family Code. It is deemed constituted as a family home upon the
effectivity of the Family Code on August 3, 1988 not August 4, one year after
its publication in the Manila Chronicle on August 4, 1987 (1988 being a leap
year).

The contention of petitioner that it should be considered a family home from

the time it was occupied by petitioner and his family in 1969 is not welltaken. Under Article 162 of the Family Code, it is provided that "the
provisions of this Chapter shall also govern existing family residences insofar
as said provisions are applicable." It does not mean that Articles 152 and 153
of said Code have a retroactive effect such that all existing family residences
are deemed to have been constituted as family homes at the time of their
occupation prior to the effectivity of the Family Code and are exempt from
execution for the payment of obligations incurred before the effectivity of the
Family Code. Article 162 simply means that all existing family residences at
the time of the effectivity of the Family Code, are considered family homes
and are prospectively entitled to the benefits accorded to a family home
under the Family Code. Article 162 does not state that the provisions of
Chapter 2, Title V have a retroactive effect.

PERE

SERE

REYE

BERN

Prom

Is the family home of petitioner exempt from execution of the money

judgment aforecited No. The debt or liability which was the basis of the
judgment arose or was incurred at the time of the vehicular accident on
March 16, 1976 and the money judgment arising therefrom was rendered by
the appellate court on January 29, 1988. Both preceded the effectivity of the
Family Code on August 3, 1988. This case does not fall under the exemptions
from execution provided in the Family Code.

Janu

As to the agricultural land subject of the execution, the trial court correctly
ruled that the levy to be made by the sheriff shall be on whatever rights the
petitioner may have on the land.
WHEREFORE, the petition is DISMISSED for lack of merit. No pronouncement
as to costs.
SO ORDERED.

G.R. No. 185064

Present:
CARPIO, J.,

Chairperson,

SPOUSES ARACELI OLIVA-DE MESA and ERNESTO S. DE MESA,

Petitioner,

name. The petitioners jointly purchased the subject property on April 17,
1984 while they were still merely cohabiting before their marriage. A house
was later constructed on the subject property, which the petitioners
thereafter occupied as their family home after they got married sometime in
January 1987.

- versus SPOUSES CLAUDIO D. ACERO, JR. and MA. RUFINA D. ACERO,

SHERIFF FELIXBERTO L. SAMONTE and REGISTRAR ALFREDO
SANTOS,

Sometime in September 1988, Araceli obtained a loan from Claudio

D. Acero, Jr. (Claudio) in the amount of P100,000.00, which was secured by
a mortgage over the subject property. As payment, Araceli issued a check
drawn against China Banking Corporation payable to Claudio.

Respondents.
x-----------------------------------------------------------------------------------------x
DECISION

When the check was presented for payment, it was dishonored as

the account from which it was drawn had already been closed. The
petitioners failed to heed Claudios subsequent demand for payment.

REYES, J.:
Nature of the Petition

This is a petition for review on certiorari under Rule 45 of the Rules

of Court filed by the Spouses Araceli Oliva-De Mesa (Araceli) and Ernesto S.
De Mesa (Ernesto), assailing the Court of Appeals (CA) Decision1 dated June
6, 2008 and Resolution2 dated October 23, 2008 in CA-G.R. CV No. 79391
entitled Spouses Araceli Oliva-De Mesa and Ernesto De Mesa v. Spouses
Claudio Acero, Jr., et al.

The Antecedent Facts

This involves a parcel of land situated at No. 3 Forbes Street, Mount

Carmel Homes Subdivision, Iba, Meycauayan, Bulacan, which was formerly
covered by Transfer Certificate of Title (TCT) No. T-76.725 (M) issued by the
Register of Deeds of Meycauayan, Bulacan and registered under Aracelis

Thus, on April 26, 1990, Claudio filed with the Prosecutor's Office of
Malolos, Bulacan a complaint for violation of Batas Pambansa Blg. 22 (B.P.
22) against the petitioners. After preliminary investigation, an information for
violation of B.P. 22 was filed against the petitioners with the Regional Trial
Court (RTC) of Malolos, Bulacan.

On October 21, 1992, the RTC rendered a Decision3 acquitting the

petitioners but ordering them to pay Claudio the amount of P100,000.00 with
legal interest from date of demand until fully paid.

On March 15, 1993, a writ of execution was issued and Sheriff

Felixberto L. Samonte (Sheriff Samonte) levied upon the subject property.
On March 9, 1994, the subject property was sold on public auction; Claudio
was the highest bidder and the corresponding certificate of sale was issued
to him.

Sometime in February 1995, Claudio leased the subject property to

the petitioners and a certain Juanito Oliva (Juanito) for a monthly rent
of P5,500.00. However, the petitioners and Juanito defaulted in the payment
of the rent and as of October 3, 1998, their total accountabilities to Claudio
amounted to P170,500.00.

The petitioners appealed the MTCs July 22, 1999 Decision to the
RTC. This appeal was, however, dismissed in a Decision dated November 22,
1999 due to the petitioners failure to submit their Memorandum. The
petitioners sought reconsideration of the said decision but the same was
denied in an Order dated January 31, 2000.

Meanwhile, on March 24, 1995, a Final Deed of Sale4 over the

subject property was issued to Claudio and on April 4, 1995, the Register of
Deeds of Meycauayan, Bulacan cancelled TCT No. T-76.725 (M) and issued
TCT No. T-221755 (M)5 in his favor.

Consequently, the petitioners filed a petition for review7 with the CA

assailing the RTCs November 22, 1999 Decision and January 31, 2000
Order. In a December 21, 2006 Decision,8 the CA denied the petitioners
petition for review. This became final on July 25, 2007.9

Unable to collect the aforementioned rentals due, Claudio and his

wife Ma. Rufina Acero (Rufina) (collectively referred to as Spouses Acero)
filed a complaint for ejectment with the Municipal Trial Court (MTC) of
Meycauayan, Bulacan against the petitioners and Juanito. In their defense,
the petitioners claimed that Spouses Acero have no right over the subject
property. The petitioners deny that they are mere lessors; on the contrary,
they are the lawful owners of the subject property and, thus cannot be
evicted therefrom.

In the interregnum, on October 29, 1999, the petitioners filed

against the respondents a complaint10 to nullify TCT No. T-221755 (M) and
other documents with damages with the RTC of Malolos, Bulacan. Therein,
the petitioners asserted that the subject property is a family home, which is
exempt from execution under the Family Code and, thus, could not have
been validly levied upon for purposes of satisfying the March 15, 1993 writ of
execution.

On July 22, 1999, the MTC rendered a Decision, giving due course
to Spouses Aceros complaint and ordering the petitioners and Juanito to
vacate the subject property. Finding merit in Spouses Aceros claims, the
MTC dismissed the petitioners' claim of ownership over the subject property.
According to the MTC, title to the subject property belongs to Claudio as
shown by TCT No. T-221755 (M).

The MTC also stated that from the time a Torrens title over the
subject property was issued in Claudios name up to the time the complaint
for ejectment was filed, the petitioners never assailed the validity of the levy
made by Sheriff Samonte, the regularity of the public sale that was
conducted thereafter and the legitimacy of Claudios Torrens title that was
resultantly issued.

On September 3, 2002, the RTC rendered a Decision,11 which

dismissed the petitioners complaint. Citing Article 155(3) of the Family Code,
the RTC ruled that even assuming that the subject property is a family home,
the exemption from execution does not apply. A mortgage was constituted
over the subject property to secure the loan Araceli obtained from Claudio
and it was levied upon as payment therefor.

The petitioners sought reconsideration of the RTCs September 3,

2002 Decision but this was denied in a Resolution12 dated January 14, 2003.

On appeal, the CA affirmed the RTCs disposition in its

Decision13 dated June 6, 2008. The CA ratiocinated that the exemption of a
family home from execution, attachment or forced sale under Article 153 of
the Family Code is not automatic and should accordingly be raised and

proved to the Sheriff prior to the execution, forced sale or attachment. The
appellate court noted that at no time did the petitioners raise the supposed
exemption of the subject property from execution on account of the same
being a family home.

The Courts Ruling

First Issue: Forum-Shopping

The petitioners then sought reconsideration of the said June 6, 2008
Decision but the same was denied by the CA in its Resolution14 dated
October 23, 2008.

On the first issue, we find that the petitioners are not guilty of
forum-shopping.

Aggrieved, the petitioners filed the instant petition for review,

praying for the cancellation of TCT No. T-221755 (M). They insist that the
execution sale that was conducted is a nullity considering that the subject
property is a family home. The petitioners assert that, contrary to the
disposition of the CA, a prior demonstration that the subject property is a
family home is not required before it can be exempted from execution.

There is forum-shopping when as a result of an adverse decision in

one forum, or in anticipation thereof, a party seeks a favorable opinion in
another forum through means other than an appeal or certiorari. Forumshopping exists when two or more actions involve the same transactions,
essential facts, and circumstances; and raise identical causes of action,
subject matter, and issues.16

In their Comment,15 Spouses Acero claimed that this petition ought

to be denied on the ground of forum-shopping as the issues raised had
already been determined by the MTC in its July 22, 1999 Decision on the
complaint for ejectment filed by them, which had already become final and
executory following the petitioners failure to appeal the CAs December 21,
2006 Decision affirming it.

Forum-shopping exists where the elements of litis pendentia are

present, and where a final judgment in one case will amount to res
judicata in the other. The elements of forum-shopping are: (a) identity of
parties, or at least such parties as would represent the same interest in both
actions; (b) identity of rights asserted and relief prayed for, the relief being
founded on the same facts; and (c) identity of the two preceding particulars
such that any judgment rendered in the other action will, regardless of which
party is successful, amount to res judicatain the action under consideration.17

Issues

The threshold issues for resolution are the following: (a) whether the
petitioners are guilty of forum-shopping; and (b) whether the lower courts
erred in refusing to cancel Claudios Torrens title TCT No. T-221755 (M) over
the subject property.

There is no identity of issues and reliefs prayed for in the ejectment

case and in the action to cancel TCT No. T-221755 (M). Verily, the primordial
issue in the ejectment case is who among the contending parties has a
better right of possession over the subject property while ownership is the
core issue in an action to cancel a Torrens title.

It is true that the petitioners raised the issue of ownership over the
subject property in the ejectment case. However, the resolution thereof is
only provisional as the same is solely for the purpose of determining who
among the parties therein has a better right of possession over the subject
property.

rendered in an ejectment case shall not bar an action

between the same parties respecting title to the land or
building nor shall it be conclusive as to the facts therein
found in a case between the same parties upon a different
cause of action involving possession.

Accordingly, a judgment rendered in an ejectment case is not a bar

to action between the same parties respecting title to the land or building.
Neither shall it be conclusive as to the facts therein. This issue is far from
being novel and there is no reason to depart from this Courts previous
pronouncements. In Malabanan v. Rural Bank of Cabuyao, Inc.,18 this Court
had previously clarified that a decision in an ejectment case is not res
judicata in an annulment of title case and vice-versa given the provisional
and inconclusive nature of the determination of the issue of ownership in the
former.

It bears emphasizing that in ejectment suits, the

only issue for resolution is the physical or material
possession of the property involved, independent of any
claim of ownership by any of the party litigants. However,
the issue of ownership may be provisionally ruled upon for
the sole purpose of determining who is entitled to
possession de facto. Therefore, the provisional determination
of ownership in the ejectment case cannot be clothed with
finality.

Forum-shopping exists where the elements of litis

pendentia are present, namely: (a) identity of parties or at
least such as representing the same interests in both
actions; (b) identity of rights asserted and reliefs prayed for,
the relief being founded on the same facts; and (c) the
identity in the two cases should be such that the judgment
that may be rendered in one would, regardless of which
party is successful, amounts to res judicata in the other.

Corollarily, the incidental issue of whether a pending

action for annulment would abate an ejectment suit must be
resolved in the negative.

Petitioner and respondent are the same parties in

the annulment and ejectment cases. The issue of ownership
was likewise being contended, with same set of evidence
being presented in both cases. However, it cannot be
inferred that a judgment in the ejectment case would
amount to res judicata in the annulment case, and viceversa.

This issue is hardly a novel one. It has been laid to

rest by heaps of cases iterating the principle that a judgment

A pending action involving ownership of the same

property does not bar the filing or consideration of an
ejectment suit, nor suspend the proceedings. This is so
because an ejectment case is simply designed to summarily
restore physical possession of a piece of land or building to
one who has been illegally or forcibly deprived thereof,
without prejudice to the settlement of the parties' opposing
claims of juridical possession in appropriate
proceedings.19 (citations omitted)

Second Issue: Nullification of TCT No. T-221755 (M)

Anent the second issue, this Court finds that the CA did not err in
dismissing the petitioners complaint for nullification of TCT No. T-221755
(M).

The subject property is a

family home.

The petitioners maintain that the subject property is a family home

and, accordingly, the sale thereof on execution was a nullity. In Ramos v.
Pangilinan,20 this Court laid down the rules relative to exemption of family
homes from execution:

For the family home to be exempt from execution,

distinction must be made as to what law applies based
on when it was constituted and what requirements must be
complied with by the judgment debtor or his successors
claiming such privilege. Hence, two sets of rules are
applicable.

If the family home was constructed before the

effectivity of the Family Code or before August 3,
1988, then it must have been constituted either
judicially or extra-judicially as provided
under Articles 225, 229-231 and 233 of the Civil

Code. Judicial constitution of the family home requires the

filing of a verified petition before the courts and the
registration of the courts order with the Registry of Deeds of
the area where the property is located. Meanwhile,
extrajudicial constitution is governed by Articles 240 to 242
of the Civil Code and involves the execution of a public
instrument which must also be registered with the Registry
of Property. Failure to comply with either one of these two
modes of constitution will bar a judgment debtor from
availing of the privilege.

On the other hand, for family homes

constructed after the effectivity of the Family Code on
August 3, 1988, there is no need to constitute
extrajudicially or judicially, and the exemption is
effective from the time it was constituted and lasts as long
as any of its beneficiaries under Art. 154 actually resides
therein. Moreover, the family home should belong to the
absolute community or conjugal partnership, or if exclusively
by one spouse, its constitution must have been with consent
of the other, and its value must not exceed certain amounts
depending upon the area where it is located. Further, the
debts incurred for which the exemption does not apply as
provided under Art. 155 for which the family home is made
answerable must have been incurred after August 3,
1988.21 (citations omitted)

In the earlier case of Kelley, Jr. v. Planters Products, Inc.,22 we

stressed that:

Under the Family Code, there is no need to

constitute the family home judicially or extrajudicially. All
family homes constructed after the effectivity of the Family
Code (August 3, 1988) are constituted as such by operation
of law. All existing family residences as of August 3,

1988 are considered family homes and are

prospectively entitled to the benefits accorded to a
family home under the Family Code.23 (emphasis
supplied and citation omitted)

The foregoing rules on constitution of family homes, for purposes of

exemption from execution, could be summarized as follows:

First, family residences constructed before the effectivity of the

Family Code or before August 3, 1988 must be constituted as a family home
either judicially or extrajudicially in accordance with the provisions of the Civil
Code in order to be exempt from execution;

Second, family residences constructed after the effectivity of the

Family Code on August 3, 1988 are automatically deemed to be family
homes and thus exempt from execution from the time it was constituted and
lasts as long as any of its beneficiaries actually resides therein;

Third, family residences which were not judicially or extrajudicially

constituted as a family home prior to the effectivity of the Family Code, but
were existing thereafter, are considered as family homes by operation of law
and are prospectively entitled to the benefits accorded to a family home
under the Family Code.

Here, the subject property became a family residence sometime in

January 1987. There was no showing, however, that the same was judicially
or extrajudicially constituted as a family home in accordance with the
provisions of the Civil Code. Still, when the Family Code took effect on
August 3, 1988, the subject property became a family home by operation of

law and was thus prospectively exempt from execution. The petitioners were
thus correct in asserting that the subject property was a family home.

The family homes

exemption from
execution must be set
up and proved to the
Sheriff before the sale of
the property at public
auction.

Despite the fact that the subject property is a family home and, thus,
should have been exempt from execution, we nevertheless rule that the CA
did not err in dismissing the petitioners complaint for nullification of TCT No.
T-221755 (M). We agree with the CA that the petitioners should have
asserted the subject property being a family home and its being exempted
from execution at the time it was levied or within a reasonable time
thereafter. As the CA aptly pointed out:

In the light of the facts above summarized, it is

evident that appellants did not assert their claim of
exemption within a reasonable time. Certainly, reasonable
time, for purposes of the law on exemption, does not mean
a time after the expiration of the one-year period provided
for in Section 30 of Rule 39 of the Rules of Court for
judgment debtors to redeem the property sold on execution,
otherwise it would render nugatory final bills of sale on
execution and defeat the very purpose of execution to put
an end to litigation. x x x.24

The foregoing disposition is in accord with the Courts November 25,

2005 Decision in Honrado v. Court of Appeals,25 where it was categorically
stated that at no other time can the status of a residential house as a family
home can be set up and proved and its exemption from execution be claimed
but before the sale thereof at public auction:

While it is true that the family home is constituted

on a house and lot from the time it is occupied as a family
residence and is exempt from execution or forced sale under
Article 153 of the Family Code, such claim for exemption
should be set up and proved to the Sheriff before the sale of
the property at public auction. Failure to do so would estop
the party from later claiming the exemption. As this Court
ruled in Gomez v. Gealone:

Although the Rules of Court does

not prescribe the period within which to
claim the exemption, the rule is,
nevertheless, well-settled that the right of
exemption is a personal privilege granted to
the judgment debtor and as such, it must be
claimed not by the sheriff, but by the debtor
himself at the time of the levy or within a
reasonable period thereafter;
In the absence of
express provision it has
variously held that claim
(for exemption) must be
made at the time of the levy
if the debtor is present, that
it must be made within a
reasonable time, or
promptly, or before the
creditor has taken any step
involving further costs, or
before advertisement of
sale, or at any time before
sale, or within a reasonable

time before the sale, or

before the sale has
commenced, but as to the
last there is contrary
authority.

In the light of the facts above

summarized, it is self-evident that appellants
did not assert their claim of exemption
within a reasonable time. Certainly,
reasonable time, for purposes of the law on
exemption, does not mean a time after the
expiration of the one-year period provided
for in Section 30 of Rule 39 of the Rules of
Court for judgment debtors to redeem the
property sold on execution, otherwise it
would render nugatory final bills of sale on
execution and defeat the very purpose of
executionto put an end to litigation. We
said before, and We repeat it now, that
litigation must end and terminate sometime
and somewhere, and it is essential to an
effective administration of justice that, once
a judgment has become final, the winning
party be not, through a mere subterfuge,
deprived of the fruits of the verdict. We now
rule that claims for exemption from
execution of properties under Section 12 of
Rule 39 of the Rules of Court must be
presented before its sale on execution by
the sheriff.26 (citations omitted)
Reiterating the foregoing in Spouses Versola v. Court of
Appeals,27 this Court stated that:

Under the cited provision, a family home is deemed

constituted on a house and lot from the time it is occupied
as a family residence; there is no need to constitute the
same judicially or extrajudicially.

The settled rule is that the right to exemption

or forced sale under Article 153 of the Family Code is
a personal privilege granted to the judgment debtor
and as such, it must be claimed not by the sheriff,
but by the debtor himself before the sale of the
property at public auction. It is not sufficient that the
person claiming exemption merely alleges that such property
is a family home. This claim for exemption must be set
up and proved to the Sheriff. x x x.28 (emphasis supplied
and citations omitted)

Having failed to set up and prove to the sheriff the supposed

exemption of the subject property before the sale thereof at public auction,
the petitioners now are barred from raising the same. Failure to do so estop
them from later claiming the said exemption.

Indeed, the family home is a sacred symbol of family love and is the
repository of cherished memories that last during ones lifetime.29 It is
likewise without dispute that the family home, from the time of its
constitution and so long as any of its beneficiaries actually resides therein, is
generally exempt from execution, forced sale or attachment.30

The family home is a real right, which is gratuitous, inalienable and

free from attachment. It cannot be seized by creditors except in certain
special cases.31 However, this right can be waived or be barred by laches by
the failure to set up and prove the status of the property as a family home at
the time of the levy or a reasonable time thereafter.

subject property was sold until a Final Deed of Sale was issued to Claudio
and, later, Aracelis Torrens title was cancelled and a new one issued under
Claudios name, still, the petitioner remained silent. In fact, it was only after
the respondents filed a complaint for unlawful detainer, or approximately
four (4) years from the time of the auction sale, that the petitioners claimed
that the subject property is a family home, thus, exempt from execution.

For all intents and purposes, the petitioners negligence or omission

to assert their right within a reasonable time gives rise to the presumption
that they have abandoned, waived or declined to assert it. Since the
exemption under Article 153 of the Family Code is a personal right, it is
incumbent upon the petitioners to invoke and prove the same within the
prescribed period and it is not the sheriffs duty to presume or raise the
status of the subject property as a family home.

The petitioners negligence or omission renders their present

assertion doubtful; it appears that it is a mere afterthought and artifice that
cannot be countenanced without doing the respondents injustice and
depriving the fruits of the judgment award in their favor. Simple justice and
fairness and equitable considerations demand that Claudios title to the
property be respected. Equity dictates that the petitioners are made to suffer
the consequences of their unexplained negligence.

WHEREFORE, in consideration of the foregoing disquisitions, the

petition is DENIED. The assailed Decision dated June 6, 2008 of the Court
of Appeals in CA-G.R. CV No. 79391, which affirmed the Decision of the
Regional Trial Court of Malolos, Bulacan, Branch 22, in Civil Case No. 1058M-99 and dismissed the complaint for declaration of nullity of TCT No.
221755 (M) and other documents, and the October 23, 2008 Resolution
denying reconsideration, are AFFIRMED.
SO ORDERED.

In this case, it is undisputed that the petitioners allowed a

considerable time to lapse before claiming that the subject property is a
family home and its exemption from execution and forced sale under the
Family Code. The petitioners allowed the subject property to be levied upon
and the public sale to proceed. One (1) year lapsed from the time the

G.R. No. 163604

May 6, 2005

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
THE HON. COURT OF APPEALS (Twentieth Division), HON.
PRESIDING JUDGE FORTUNITO L. MADRONA, RTC-BR. 35 and
APOLINARIA MALINAO JOMOC, respondents.
DECISION
CARPIO-MORALES, J.:
In "In the Matter of Declaration of Presumptive Death of Absentee Spouse
Clemente P. Jomoc, Apolinaria Malinao Jomoc, petitioner," the Ormoc City,
Regional Trial Court, Branch 35, by Order of September 29, 1999,1 granted
the petition on the basis of the Commissioners Report2 and accordingly
declared the absentee spouse, who had left his petitioner-wife nine years
earlier, presumptively dead.
In granting the petition, the trial judge, Judge Fortunito L. Madrona, cited
Article 41, par. 2 of the Family Code. Said article provides that for the
purpose of contracting a valid subsequent marriage during the subsistence of
a previous marriage where the prior spouse had been absent for four
consecutive years, the spouse present must institute summary
proceedings for the declaration of presumptive death of the absentee
spouse, without prejudice to the effect of the reappearance of the absent
spouse.
The Republic, through the Office of the Solicitor General, sought to appeal
the trial courts order by filing a Notice of Appeal.3
By Order of November 22, 1999s,4 the trial court, noting that no record of
appeal was filed and served "as required by and pursuant to Sec. 2(a), Rule
41 of the 1997 Rules of Civil Procedure, the present case being a special
proceeding," disapproved the Notice of Appeal.
The Republics Motion for Reconsideration of the trial courts order of
disapproval having been denied by Order of January 13, 2000,5 it filed a
Petition for Certiorari6 before the Court of Appeals, it contending that the
declaration of presumptive death of a person under Article 41 of the Family
Code is not a special proceeding or a case of multiple or separate appeals
requiring a record on appeal.

By Decision of May 5, 2004,7 the Court of Appeals denied the Republics

petition on procedural and substantive grounds in this wise:
At the outset, it must be stressed that the petition is not sufficient in
form. It failed to attach to its petition a certified true copy of the
assailed Order dated January 13, 2000 [denying its Motion for
Reconsideration of the November 22, 1999 Order disapproving its
Notice of Appeal]. Moreover, the petition questioned the [trial
courts] Order dated August 15, 1999, which declared Clemente
Jomoc presumptively dead, likewise for having been issued with
grave abuse of discretion amounting to lack of jurisdiction, yet, not
even a copy could be found in the records. On this score alone, the
petition should have been dismissed outright in accordance with Sec.
3, Rule 46 of the Rules of Court.
However, despite the procedural lapses, the Court resolves to delve
deeper into the substantive issue of the validity/nullity of the assailed
order.
The principal issue in this case is whether a petition for
declaration of the presumptive death of a person is in the
nature of a special proceeding. If it is, the period to appeal is 30
days and the party appealing must, in addition to a notice of appeal,
file with the trial court a record on appeal to perfect its appeal.
Otherwise, if the petition is an ordinary action, the period to appeal
is 15 days from notice or decision or final order appealed from and
the appeal is perfected by filing a notice of appeal (Section 3, Rule
41, Rules of Court).
As defined in Section 3(a), Rule 1 of the Rules of Court, "a civil
action is one by which a party sues another for the enforcement or
protection of a right, or the prevention of redress of a wrong"
while a special proceeding under Section 3(c) of the same rule is
defined as "a remedy by which a party seeks to establish a status, a
right or a particular fact (Heirs of Yaptinchay, et al. v. Del Rosario, et
al., G.R. No. 124320, March 2, 1999).
Considering the aforementioned distinction, this Court finds that the
instant petition is in the nature of a special proceeding and
not an ordinary action. The petition merely seeks for a declaration
by the trial court of the presumptive death of absentee spouse
Clemente Jomoc. It does not seek the enforcement or protection of a
right or the prevention or redress of a wrong. Neither does it involve

a demand of right or a cause of action that can be enforced against

any person.
On the basis of the foregoing discussion, the subject Order dated
January 13, 2000 denying OSGs Motion for Reconsideration of the
Order dated November 22, 1999 disapproving its Notice of Appeal
was correctly issued. The instant petition, being in the nature
of a special proceeding, OSG should have filed, in addition to
its Notice of Appeal, a record on appeal in accordance with
Section 19 of the Interim Rules and Guidelines to Implement BP Blg.
129 and Section 2(a), Rule 41 of the Rules of Court . . . (Emphasis
and underscoring supplied)
The Republic (petitioner) insists that the declaration of presumptive death
under Article 41 of the Family Code is not a special proceeding involving
multiple or separate appeals where a record on appeal shall be filed and
served in like manner.

(c) Guardianship and custody of children;

(d) Trustees;
(e) Adoption;
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of minor natural children;
(l) Constitution of family home;

Petitioner cites Rule 109 of the Revised Rules of Court which enumerates the
cases wherein multiple appeals are allowed and a record on appeal is
required for an appeal to be perfected. The petition for the declaration of
presumptive death of an absent spouse not being included in the
enumeration, petitioner contends that a mere notice of appeal suffices.
By Resolution of December 15, 2004,8 this Court, noting that copy of the
September 27, 2004 Resolution9requiring respondent to file her comment on
the petition was returned unserved with postmasters notation "Party
refused," Resolved to consider that copy deemed served upon her.
The pertinent provisions on the General Provisions on Special
Proceedings, Part II of the Revised Rules of Court entitled SPECIAL
PROCEEDINGS, read:
RULE 72
SUBJECT MATTER AND APPLICABILITY
OF GENERAL RULES
Section 1. Subject matter of special proceedings. Rules of special proceedings are
provided for in the following:
(a) Settlement of estate of deceased persons;
(b) Escheat;

(m) Declaration of absence and death;

(n) Cancellation or correction of entries in the civil registry.

Sec. 2. Applicability of rules of civil actions. In the absence of
special provisions, the rules provided for in ordinary actions shall be,
as far as practicable, applicable in special proceedings.
(Underscoring supplied)
The pertinent provision of the Civil Code on presumption of death provides:
Art. 390. After an absence of seven years, it being unknown whether
or not the absentee still lives, he shall be presumed dead for all
purposes, except for those of succession.
x x x (Emphasis and underscoring supplied)
Upon the other hand, Article 41 of the Family Code, upon which the trial
court anchored its grant of the petition for the declaration of presumptive
death of the absent spouse, provides:
Art. 41. A marriage contracted by any person during the subsistence
of a previous marriage shall be null and void, unless before the
celebration of the subsequent marriage, the prior spouses had been

absent for four consecutive years and the spouse present had a wellfounded belief that the absent spouses was already dead. In case of
disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the Civil
Code, an absence of only two years shall be sufficient.
For the purpose pf contracting the subsequent marriage under the
preceding paragraph, the spouses present must institute
a summary proceeding as provided in this Code for the
declaration of presumptive death of the absentee, without prejudice
to the effect of a reappearance of the absent spouse. (Emphasis and
underscoring supplied)
Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal,
invoked by the trial court in disapproving petitioners Notice of Appeal,
provides:
Sec. 2. Modes of appeal. (a) Ordinary appeal. - The appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a
notice of appeal with the court which rendered the judgment or final order appealed
from and serving a copy thereof upon the adverse party. No record on appeal shall be
required except in special proceedings and other cases of multiple or separate
appeals where the law or these Rules so require. In such cases, the record on
appeal shall be filed and served in like manner. (Emphasis and underscoring supplied)

xxx
By the trial courts citation of Article 41 of the Family Code, it is gathered
that the petition of Apolinaria Jomoc to have her absent spouse declared
presumptively dead had for its purpose her desire to contract a valid
subsequent marriage. Ergo, the petition for that purpose is a "summary
proceeding," following above-quoted Art. 41, paragraph 2 of the Family
Code.
Since Title XI of the Family Code, entitled SUMMARY JUDICIAL PROCEEDING
IN THE FAMILY LAW, contains the following provision, inter alia:
xxx
Art. 238. Unless modified by the Supreme Court, the procedural rules
in this Title shall apply in all casesprovided for in this Codes
requiring summary court proceedings. Such cases shall be

decided in an expeditious manner without regard to

technical rules. (Emphasis and underscoring supplied)
x x x,
there is no doubt that the petition of Apolinaria Jomoc required, and is,
therefore, a summary proceeding under the Family Code, not a special
proceeding under the Revised Rules of Court appeal for which calls for the
filing of a Record on Appeal. It being a summary ordinary proceeding, the
filing of a Notice of Appeal from the trial courts order sufficed.
That the Family Code provision on repeal, Art. 254, provides as follows:
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of
Republic Act No. 386, otherwise known as the Civil Code of the
Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31,
39, 40, 41 and 42 of Presidential Decree No. 603, otherwise known
as the Child and Youth Welfare Code, as amended, andall laws,
decrees, executive orders, proclamations rules and regulations, or
parts thereof, inconsistent therewith are
hereby repealed, (Emphasis and underscoring supplied),
seals the case in petitioners favor.
Finally, on the alleged procedural flaw in petitioners petition before the
appellate court. Petitioners failure to attach to his petition before the
appellate court a copy of the trial courts order denying its motion for
reconsideration of the disapproval of its Notice of Appeal is not necessarily
fatal, for the rules of procedure are not to be applied in a technical sense.
Given the issue raised before it by petitioner, what the appellate court should
have done was to direct petitioner to comply with the rule.
As for petitioners failure to submit copy of the trial courts order granting the
petition for declaration of presumptive death, contrary to the appellate
courts observation that petitioner was also assailing it, petitioners 8-page
petition10 filed in said court does not so reflect, it merely having assailed
the order disapproving the Notice of Appeal.
WHEREFORE, the assailed May 5, 2004 Decision of the Court of Appeals is
hereby REVERSED and SET ASIDE. Let the case be REMANDED to it for
appropriate action in light of the foregoing discussion.
SO ORDERED.

G.R. No. L-32026 January 16, 1986

RE: PETITION FOR DECLARATION OF ABSENCE OF ROBERTO L.
REYES. ERLINDA REYNOSO REYES,petitioner,
vs.
HON, JOSE P. ALEJANDRO, in his capacity as Judge, Court of First
Instance of Cavite, Branch II, Cavite City, respondents.

PATAJO, J.:
This is an appeal from an order of the Court of First Instance of Cavite
dismissing the petition filed by petitioner-appellant Erlinda Reynoso Reyes to
have her husband Roberto Reyes declared an absentee.
In a petition filed on October 25, 1969 Erlinda Reynoso prayed for the
declaration of the absence of her husband Roberto L. Reyes alleging that her
husband had been absent from their conjugal dwelling since April 1962 and
since then had not been heard from and his whereabouts unknown. The
petition further alleged that her husband left no will nor any property in his
name nor any debts.
The evidence presented by petitioner in support of her petition established
that she and Roberto L. Reyes were married on March 20, 1960; that
sometime in April 1962 her husband left the conjugal home due to some
misunderstanding over personal matters; that since then petitioner has not
received any news about the whereabouts of her husband; that they have
not acquired any properties during their marriage and that they have no
outstanding obligation in favor of anyone; that her only purpose in filing the
petition is to establish the absence of her husband, invoking the provisions of
Rule 107 of the New Rules of Court and Article 384 of the Civil Code.
After hearing the Court a quo dismissed the petition on the ground that since
Roberto L. Reyes left no properties there was no necessity to declare him
judicially an absentee. It said:
A perusal of Rule 107 of the Rules of Court on absentees
reveals that it is based on the provisions of Title XIV of the
New Civil Code on absence. And the reason and purpose of
the provisions of the New Civil Code on absence (Arts. 381
to 396) are: (1) The interest of the person himself who has
disappeared; (2) The rights of third parties against the

absentee, especially those who have rights which would

depend upon the death of the absentee; and (3) The
general interest of society which may require that property
does not remain abandoned without someone representing it
and without an owner (Civil Code by Francisco, Vol. 2, pp.
930- 931, 1953 Ed.).
It will thus be noted that said provisions of the New Civil
Code are concerned with absence only with reference to its
effects on property (2 Manresa, 101-102, Civil Code by
Francisco, Vol. 2, p. 932. 1953 Ed.). Article 384, New Civil
Code, which is reproduced from Article 184 of the old Code,
and relied upon by herein petitioner, refers to the second
period or stage of absence, and specifically indicates the
precise moment when the same may begin. Thus, this article
provides that after the lapse of two (2) years without any
news about the absentee or since the receipt of the last
news, and five (5) years in case the absentee has left a
person in charge of the administration of his property, his
absence may be declared by the Court. The primordial
purpose of this declaration is to provide for an administrator
of the property of the absentee. It cannot be said that
because of the comma (,) between the words 'news' and
'and', the two-year period mentioned in the first part of the
law has no reference to or bearing on the property of the
absentee. Manresa states that the only reason for the
different periods is because in one case (2 years) the
absentee has not left a person in charge of the
administration of his property, and in the other case (5
years) the absentee has provided for his absence by
appointing an administrator of his property dispensing in a
way the giving of news about himself (2 Manresa, 127-128).
It is worth to note, in this connection, that the first period or
stage of absence as covered by Article 381 of the New Civil
Code provides for provisional measures-the appointment by
the Court of a person to represent the absentee' in all that
may be necessary'-when a mere presumption of his absence
arises. It should be noted that the appointment of a
'representative' of the absentee is for the protection of the
interest of the latter. This is clear from the provisions of
Article 382 which enjoins the judge to 'take the necessary
measures to safeguard the rights and interests of the
absentee. ... Moreover, it is not enough that a person is
declared an absentee. The law (see Articles 381, 382 and

383) requires the judge to appoint a representative for the

absentee precisely to safeguard the property or interest of
the latter. It is thus imperative that the declaration of
absence be for a specific purpose, and that purpose can be
no other than the protection of the interest or property of
the absentee. Castan, in his commentary, emphatically
states that there must be an immediate necessity for the
representation of the absentee in some specific urgent
matters (Vol. 1, pp. 182-183).
The same observation and commentary can be said of the
corresponding complimenting provisions of Rule 107 of the
Rules of Court, particularly Sections 6 and 7 thereof which
make it mandatory upon the Court to appoint a
representative, trustee or administrator who shall safeguard
the rights and interest of the absentee.
Considering that neither the petition alleges, nor the
evidence shows, that Roberto L. Reyes has any rights,
interest or property in the Philippines, there is no point in
judicially declaring him an absentee.
We affirm the order of the lower Court dismissing the petition. As this Court
said in Jones vs. Hortiguela, 64 Phil. 197:
... For the purposes of the civil marriage law, it is not
necessary to have the former spouse judicially declared an
absentee. The declaration of absence made in accordance
with the provisions of the Civil Code has for its sole purpose
to enable the taking of the necessary precautions for the
administration of the estate of the absentee. For the
celebration of civil marriage, however, the law only requires
that the former spouse has been absent for seven
consecutive years at the time of the second marriage, that
the spouse present does not know his or her former spouse
to he living, that such former spouse is generally reputed to
be dead and the spouse present so believes at the time of
the celebration of the marriage (section III, paragraph 2,
General Orders, No. 68). (On page 183).
The need to have a person judicially declared an absentee is when he has
properties which have to be taken cared of or administered by a
representative appointed by the Court (Article 384, Civil Code); the spouse of

the absentee is asking for separation of property (Article 191, Civil Code) or
his wife is asking the Court that the administration of an classes of property
in the marriage be transferred to her (Article 196, Civil Code). The petition to
declare the husband an absentee and the petition to place the management
of the conjugal properties in the hands of the wife may be combined and
adjudicated in the same proceedings, Peyer vs. Martinez, 88 Phil. 72, 80).
IN VIEW OF THE FOREGOING, judgment is hereby rendered AFFIRMING the
order of the lower Court dismissing the petition to declare Roberto L. Reyes
an absentee. With costs against petitioner-appellant.
SO ORDERED.

ANGELITA VALDEZ,

G.R. No. 180863

Petitioner,

that, petitioner didnt hear any news of Sofio, his whereabouts or even if he
was alive or not.[2]

Present:
Believing that Sofio was already dead, petitioner married Virgilio
YNARES-SANTIAGO, J., Reyes on June 20, 1985.[3] Subsequently, however, Virgilios application for
Chairperson,
naturalization filed with the United States Department of Homeland Security
- versus CHICO-NAZARIO,
was denied because petitioners marriage to Sofio was subsisting.[4] Hence,
VELASCO, JR.,
on March 29, 2007, petitioner filed a Petition before the RTC of Camiling,
NACHURA, and
Tarlac seeking the declaration of presumptive death of Sofio.
PERALTA, JJ.
The RTC rendered its Decision[5] on November 12, 2007, dismissing
Promulgated:
the Petition for lack of merit. The RTC held that Angelita was not able to
REPUBLIC OF THE PHILIPPINES,
prove the well-grounded belief that her husband Sofio Polborosa was already
Respondent.
September 8, 2009
dead. It said that under Article 41 of the Family Code, the present spouse is
burdened to prove that her spouse has been absent and that she has a wellx------------------------------------------------------------------------------------x
founded belief that the absent spouse is already dead before the present
spouse may contract a subsequent marriage. This belief, the RTC said, must
be the result of proper and honest-to-goodness inquiries and efforts to
DECISION
ascertain the whereabouts of the absent spouse.
NACHURA, J.:

Before this Court is a Petition for Review on Certiorari under Rule 45

of the Rules of Court assailing the Decision of the Regional Trial Court (RTC)
of Camiling, Tarlac dated November 12, 2007 dismissing petitioner Angelita
Valdezs petition for the declaration of presumptive death of her husband,
Sofio Polborosa (Sofio).
The facts of the case are as follows:
Petitioner married Sofio on January 11, 1971 in Pateros, Rizal. On
December 13, 1971, petitioner gave birth to the spouses only child, Nancy.
According to petitioner, she and Sofio argued constantly because the latter
was unemployed and did not bring home any money. In March 1972, Sofio
left their conjugal dwelling. Petitioner and their child waited for him to return
but, finally, in May 1972, petitioner decided to go back to her parents home
in Bancay 1st, Camiling, Tarlac. Three years passed without any word from
Sofio. In October 1975, Sofio showed up at Bancay 1st. He and petitioner
talked for several hours and they agreed to separate. They executed a
document to that effect.[1] That was the last time petitioner saw him. After

The RTC found that, by petitioners own admission, she did not try to
find her husband anymore in light of their mutual agreement to live
separately. Likewise, petitioners daughter testified that her mother
prevented her from looking for her father. The RTC also said there is a
strong possibility that Sofio is still alive, considering that he would have been
only 61 years old by then, and people who have reached their 60s have not
become increasingly low in health and spirits, and, even assuming as true
petitioners testimony that Sofio was a chain smoker and a drunkard, there is
no evidence that he continues to drink and smoke until now.
Petitioner filed a motion for reconsideration.[6] She argued that it is
the Civil Code that applies in this case and not the Family Code since
petitioners marriage to Sofio was celebrated on January 11, 1971, long
before the Family Code took effect. Petitioner further argued that she had
acquired a vested right under the provisions of the Civil Code and the stricter
provisions of the Family Code should not be applied against her because Title
XIV of the Civil Code, where Articles 384 and 390 on declaration of absence
and presumption of death, respectively, can be found, was not expressly
repealed by the Family Code. To apply the stricter provisions of the Family
Code will impair the rights petitioner had acquired under the Civil Code.
The RTC denied the Motion for Reconsideration in a Resolution dated
December 10, 2007.[7]

Petitioner now comes before this Court seeking the reversal of the
RTC Decision and Motion for Reconsideration.
In its Manifestation and Motion,[8] the Office of the Solicitor General
(OSG) recommended that the Court set aside the assailed RTC Decision and
grant the Petition to declare Sofio presumptively dead. The OSG argues that
the requirement of well-founded belief under Article 41 of the Family Code
is not applicable to the instant case. It said that petitioner could not be
expected to comply with this requirement because it was not yet in existence
during her marriage to Virgilio Reyes in 1985. The OSG further argues that
before the effectivity of the Family Code, petitioner already acquired a vested
right as to the validity of her marriage to Virgilio Reyes based on the
presumed death of Sofio under the Civil Code. This vested right and the
presumption of Sofios death, the OSG posits, could not be affected by the
obligations created under the Family Code.[9]
Next, the OSG contends that Article 390 of the Civil Code was not
repealed by Article 41 of the Family Code.[10] Title XIV of the Civil Code, the
OSG said, was not one of those expressly repealed by the Family Code.
Moreover, Article 256 of the Family Code provides that its provisions shall not
be retroactively applied if they will prejudice or impair vested or acquired
rights.[11]
The RTC Decision, insofar as it dismissed the Petition, is affirmed.
However, we must state that we are denying the Petition on grounds
different from those cited in the RTC Decision.
Initially, we discuss a procedural issue. Under the Rules of Court, a
party may directly appeal to this Court from a decision of the trial court only
on pure questions of law. A question of law lies, on one hand, when the
doubt or difference arises as to what the law is on a certain set of facts; on
the other hand, a question of fact exists when the doubt or difference arises
as to the truth or falsehood of the alleged facts. Here, the facts are not
disputed; the controversy merely relates to the correct application of the law
or jurisprudence to the undisputed facts.[12]
The RTC erred in applying the provisions of the Family Code and
holding that petitioner needed to prove a well-founded belief that Sofio
was already dead. The RTC applied Article 41 of the Family Code, to wit:

and the spouse present has a well-founded belief that the

absent spouse was already dead. In case of disappearance
where there is danger under the circumstances set forth in
the provisions of Article 391 of the Civil Code, an absence of
only two years shall be sufficient.
For the purpose of contracting a subsequent
marriage under the preceding paragraph, the spouse present
must institute a summary proceeding as provided in this
Code for the declaration of presumptive death of the
absentee, without prejudice to the effect of reappearance of
the absent spouse.
It is readily apparent, however, that the marriages of petitioner to
Sofio and Virgilio on January 11, 1971 and June 20, 1985, respectively, were
both celebrated under the auspices of the Civil Code.
The pertinent provision of the Civil Code is Article 83:
Art. 83. Any marriage subsequently contracted by
any person during the lifetime of the first spouse of such
person with any person other than such first spouse shall be
illegal and void from its performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven
consecutive years at the time of the second marriage
without the spouse present having news of the absentee
being alive, of if the absentee, though he has been absent
for less than seven years, is generally considered as dead
and believed to be so by the spouse present at the time of
contracting such subsequent marriage, or if the absentee is
presumed dead according to Articles 390 and 391. The
marriage so contracted shall be valid in any of the three
cases until declared null and void by a competent court.
Article 390 of the Civil Code states:

Art. 41. A marriage contracted by any person during

subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage,
the prior spouse had been absent for four consecutive years

Art. 390. After an absence of seven years, it being

unknown whether or not the absentee still lives, he shall be

presumed dead for all purposes, except for those of

succession.
The absentee shall not be presumed dead for the
purpose of opening his succession till after an absence of ten
years. If he disappeared after the age of seventy-five years,
an absence of five years shall be sufficient in order that his
succession may be opened.
The Court, on several occasions, had interpreted the above-quoted
provision in this wise:
For the purposes of the civil marriage law, it is not necessary
to have the former spouse judicially declared an absentee.
The declaration of absence made in accordance with the
provisions of the Civil Code has for its sole purpose to enable
the taking of the necessary precautions for the
administration of the estate of the absentee. For the
celebration of civil marriage, however, the law only requires
that the former spouse has been absent for seven
consecutive years at the time of the second marriage, that
the spouse present does not know his or her former spouse
to be living, that such former spouse is generally reputed to
be dead and the spouse present so believes at the time of
the celebration of the marriage.[13]
Further, the Court explained that presumption of death cannot be the subject
of court proceedings independent of the settlement of the absentees estate.

In re Szatraw[14] is instructive. In that case, petitioner contracted

marriage with a Polish national in 1937. They lived together as husband and
wife for three years. Sometime in 1940, the husband, on the pretext of
visiting some friends, left the conjugal abode with their child and never
returned. After inquiring from friends, petitioner found that her husband
went to Shanghai, China. However, friends who came from Shanghai told her
that the husband was not seen there. In 1948, petitioner filed a petition for
the declaration of presumptive death of her husband arguing that since the
latter had been absent for more than seven years and she had not heard any
news from him and about her child, she believes that he is dead. In deciding
the case, the Court said:

The petition is not for the settlement of the estate of

Nicolai Szatraw, because it does not appear that he
possessed property brought to the marriage and because he
had acquired no property during his married life with the
petitioner. The rule invoked by the latter is merely one of
evidence which permits the court to presume that a person
is dead after the fact that such person had been unheard
from in seven years had been established. This presumption
may arise and be invoked and made in a case, either in an
action or in a special proceeding, which is tried or heard by,
and
submitted
for
decision
to,
a
competent
court. Independently of such an action or special
proceeding, the presumption of death cannot be
invoked, nor can it be made the subject of an action
or special proceeding. In this case, there is no right to be
enforced nor is there a remedy prayed for by the petitioner
against her absent husband. Neither is there a prayer for the
final determination of his right or status or for the
ascertainment of a particular fact (Hagans v. Wislizenus, 42
Phil. 880), for the petition does not pray for a declaration
that the petitioner's husband is dead, but merely asks for a
declaration that he be presumed dead because he had been
unheard from in seven years. If there is any pretense at
securing a declaration that the petitioner's husband is dead,
such a pretension cannot be granted because it is
unauthorized. The petition is for a declaration that the
petitioner's husband is presumptively dead. But this
declaration, even if judicially made, would not improve the
petitioner's situation, because such a presumption is already
established by law. A judicial pronouncement to that
effect, even if final and executory, would still be a
prima facie presumption only. It is still disputable. It
is for that reason that it cannot be the subject of a
judicial pronouncement or declaration, if it is the only
question or matter involved in a case, or upon which
a competent court has to pass. The latter must decide
finally the controversy between the parties, or determine
finally the right or status of a party or establish finally a
particular fact, out of which certain rights and obligations
arise or may arise; and once such controversy is decided by
a final judgment, or such right or status determined, or such
particular fact established, by a final decree, then the
judgment on the subject of the controversy, or the decree
upon the right or status of a party or upon the existence of a

particular fact, becomes res judicata, subject to no collateral

attack, except in a few rare instances especially provided by
law. It is, therefore, clear that a judicial declaration that
a person is presumptively dead, because he had been
unheard
from
in
seven
years,
being
a
presumption juris tantum only, subject to contrary
proof, cannot reach the stage of finality or become
final. Proof of actual death of the person presumed dead
because he had been unheard from in seven years, would
have to be made in another proceeding to have such
particular fact finally determined. If a judicial decree
declaring a person presumptively dead, because he had not
been heard from in seven years, cannot become final and
executory even after the lapse of the reglementary period
within which an appeal may be taken, for such presumption
is still disputable and remains subject to contrary proof, then
a petition for such a declaration is useless, unnecessary,
superfluous and of no benefit to the petitioner.[15]
In Lukban v. Republic,[16] petitioner Lourdes G. Lukban contracted
marriage with Francisco Chuidian on December 10, 1933. A few days later,
on December 27, Francisco left Lourdes after a violent quarrel. She did not
hear from him after that day. Her diligent search, inquiries from his parents
and friends, and search in his last known address, proved futile. Believing
her husband was already dead since he had been absent for more than
twenty years, petitioner filed a petition in 1956 for a declaration that she is a
widow of her husband who is presumed to be dead and has no legal
impediment to contract a subsequent marriage. On the other hand, the
antecedents in Gue v. Republic[17] are similar to Szatraw. On January 5,
1946, Angelina Gues husband left Manila where they were residing and went
toShanghai, China. From that day on, he had not been heard of, had not
written to her, nor in anyway communicated with her as to his whereabouts.
Despite her efforts and diligence, she failed to locate him. After 11 years, she
asked the court for a declaration of the presumption of death of Willian Gue,
pursuant to the provisions of Article 390 of the Civil Code of the Philippines.
In both cases, the Court reiterated its ruling in Szatraw. It held that
a petition for judicial declaration that petitioner's husband is presumed to be
dead cannot be entertained because it is not authorized by law.[18]
From the foregoing, it can be gleaned that, under the Civil Code, the
presumption of death is established by law[19] and no court declaration is
needed for the presumption to arise. Since death is presumed to have taken

place by the seventh year of absence,[20] Sofio is to be presumed dead

starting October 1982.
Consequently, at the time of petitioners marriage to Virgilio, there
existed no impediment to petitioners capacity to marry, and the marriage is
valid under paragraph 2 of Article 83 of the Civil Code.
Further, considering that it is the Civil Code that applies, proof of
well-founded belief is not required. Petitioner could not have been
expected to comply with this requirement since the Family Code was not yet
in effect at the time of her marriage to Virgilio. The enactment of the Family
Code in 1988 does not change this conclusion. The Family Code itself states:
Art. 256. 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.
To retroactively apply the provisions of the Family Code requiring
petitioner to exhibit well-founded belief will, ultimately, result in the
invalidation of her second marriage, which was valid at the time it was
celebrated. Such a situation would be untenable and would go against the
objectives that the Family Code wishes to achieve.
In sum, we hold that the Petition must be dismissed since no decree
on the presumption of Sofios death can be granted under the Civil Code, the
same presumption having arisen by operation of law. However, we declare
that petitioner was capacitated to marry Virgilio at the time their marriage
was celebrated in 1985 and, therefore, the said marriage is legal and valid.
WHEREFORE, the foregoing premises considered, the Petition
is DENIED.
SO ORDERED.

[G.R. No. 138731. December 11, 2000]

TESTATE ESTATE OF MARIA MANUEL Vda. DE BIASCAN, petitioner,

vs. ROSALINA C. BIASCAN, respondent.
DECISION
GONZAGA-REYES, J.:
This is a petition for review of the decision[1] of the Court of Appeals in
CA-G.R. SP Case No. 44306 affirming the orders dated October 22, 1996 and
February 12, 1997 of the Regional Trial Court, Branch 4, Manila. These
orders dismissed the appeal of petitioner from the orders dated April 2, 1981
and April 30, 1985 of the same Regional Trial Court.
The facts of the case are as follows:
On June 3, 1975, private respondent Rosalina J. Biascan filed a
petition[2] denominated as Special Proceeding No. 98037 at the then Court of
First Instance, Branch 4, Manila praying for her appointment as
administratrix of the intestate estate of Florencio Biascan and Timotea
Zulueta. In an Order dated August 13, 1975, private respondent was
appointed as regular administratrix of the estates.
On October 10, 1975, Maria Manuel Vda. De Biascan, the legal wife of
Florencio Biascan entered her appearance as Oppositor-Movant in SP. Proc.
No. 98037.[3] Simultaneous with her appearance, she filed a pleading
containing several motions including a motion for intervention, a motion for
the setting aside of private respondents appointment as special
administratrix and administratrix, and a motion for her appointment as
administratrix of the estate of Florencio Biascan.[4]
After an exchange of pleadings between the parties, Judge Serafin
Cuevas, then presiding judge of CFI Manila, Branch 4, issued an Omnibus
Order[5] dated November 13, 1975 which, among others, granted Marias
intervention and set for trial the motion to set aside the Orders appointing
respondent as administratrix.
On April 2, 1981, the trial court issued an Order[6] resolving that: (1)
Maria is the lawful wife of Florencio; (2) respondent and her brother are the
acknowledged natural children of Florencio; (3) all three are the legal heirs
of Florencio who are entitled to participate in the settlement proceedings; (4)
the motion to set aside the order appointing private respondent as
administratrix is denied; and (5) the motion to approve inventory and

appraisal of private respondent be deferred. Maria, through her counsel,

received a copy of this April 2, 1981 Order on April 9, 1981.[7]
On June 6, 1981, or fifty-eight (58) days after he receipt of the April 2,
1981 Order, Maria filed her motion for reconsideration[8] which private
respondent opposed.[9]
On November 15, 1981, the fourth floor of the City Hall of Manila was
completely gutted by fire. The records of the settlement proceedings were
among those lost in the fire. Thus, on January 2, 1985, private respondent
filed a Petition for Reconstitution[10] of the said records.
Due to the delay caused by the fire and the reconstitution of the
records, it was only on April 30, 1985 that the Regional Trial Court of Manila,
Branch 4 issued an Order[11] denying Marias June 6, 1981 Motion for
Reconsideration.
Sometime thereafter, Maria died and her testate estate also became the
subject of settlement proceedings. Atty. Marcial F. Lopez was appointed as
interim special administrator and engaged the services of the Siguion Reyna
Montecillo and Ongsiako Law Offices on Behalf of the estate.
On August 21, 1996, the law firm was allegedly made aware of and
given notice of the April 30, 1985 Order when its associate visited Branch 4
of the Regional Trial Court of Manila to inquire about the status of the
case. The associate checked the records if there was proof of service of the
April 30, 1985 Order to the former counsel of Maria, Atty. Marcial F. Lopez,
but he discovered that there was none.[12] He was able to secure a
certification[13] from the Clerk of Court of the Regional Trial Court of Manila,
Branch 4 which stated that there was no proof of service of the Order dated
April 30, 1985 contained in the records of SP. Proc. No. 98037.
A Notice of Appeal[14] dated April 22, 1996 was filed by petitioner from
the Orders dated April 2, 1981 and April 30, 1985 of the trial court. While
the said notice of appeal was dated April 22, 1996, the stamp of the trial
court on the first page of the notice clearly indicated that the same was
received by the trial court on September 20, 1996. A Record of
Appeal[15]dated September 20, 1996 was likewise filed by petitioner.
On October 22, 1996, the trial court issued an Order[16] denying
petitioners appeal on the ground that the appeal was filed out of time. The
trial court ruled that the April 2, 1981 Order which was the subject of the
appeal already became final as the Motion for Reconsideration thereof was
filed sixty-five (65) days after petitioner received the same. In addition, the
court ruled that the notice of appeal itself was filed manifestly late as the
same was filed more than 11 years after the issuance of the June 11, 1985
Order denying petitioners Motion for Reconsideration. The Motion for

Reconsideration dated November 13, 1996 of petitioner was likewise denied

by the trial court in an Order[17] dated February 12, 1997.
Not satisfied with this decision, petitioner filed a Petition
for Certiorari with Prayer for Mandatory Injunction[18] with the Court of
Appeals questioning the October 12, 1996 and February 12, 1997 Orders of
the Regional Trial Court.
In a Decision[19] dated February 16, 1999, the First Division of the Court
of Appeals denied the petition for certiorari of petitioner. Petitioners Motion
for Reconsideration was likewise denied by the appellate court in a
Resolution[20] dated May 18, 1999.
Hence, this Petition for Review on Certiorari where petitioner sets forth
the following ground for the reversal of the decision of the appellate court:
THE FIRST DIVISION OF THE COURT OF APPEALS (REVIEWING
COURT) HAS SANCTIONED THE DEPARTURE BY THE REGIONAL TRIAL
COURT OF MANILA BRANCH 4 (TRIAL COURT) FROM THE USUAL
COURSE OF JUDICIAL PROCEEDING IN ISSUING THE ASSAILED 16
FEBRUARY 1999 DECISION AND THE 18 MAY 1999 RESOLUTION
WHEN IT AFFIRMED THE ERRONEOUS FINDING OF THE TRIAL COURT
THAT THE ORDER DATED APRIL 2, 1981 BECAME FINAL AND
EXECUTORY DESPITE THE FACT THAT NO OPPOSITION ON ITS
TIMELINESS WAS FILED AND MOREOVER NO RULING AS REGARDS ITS
TIMELINESS WAS MADE.[21]
There is no merit in the petition.
Section 1, Rule 109 of the Rules of Court enumerates the orders and
judgments in special proceedings which may be the subject of an
appeal. Thus:
Section 1. Orders or judgments from which appeals may be taken. An
interested person may appeal in a special proceeding from an order or
judgment rendered by a Regional Trial Court or a Juvenile and domestic
Relations Court, where such order or judgment:
(a)

Allows or disallows a will;

(b)
Determines who are the lawful heirs of a deceased person, or the
distributive shares of the estate to which such person is entitled;

(c)
Allows, or disallows, in whole or in part, any claim against the
estate of a deceased person, or any claim presented on behalf of the estate
in offset to a claim against it;
(d)
Settles the account of an executor, administrator, trustee or
guardian;
(e)
Constitutes, in proceedings relating to the settlement of the estate
of a deceased person, or the administration of a trustee or guardian, a final
determination in the lower court of the rights of the party appealing, except
that no appeal shall be allowed from the appointment of a special
administrator; and
(f)
Is the final order or judgment rendered in the case, and affects the
substantial rights of the person appealing, unless it be an order granting or
denying a motion for new trial or for reconsideration.
An appeal is allowed in these aforesaid cases as these orders, decrees
or judgments issued by a court in a special proceeding constitute a final
determination of the rights of the parties so appealing.[22] In contrast,
interlocutory orders are not appealable as these are merely incidental to
judicial proceedings. In these cases, the court issuing such orders retains
control over the same and may thus modify, rescind, or revoke the same on
sufficient grounds at any time before the final judgment.[23]
In the instant case, the Order dated April 2, 1981 of the trial court
decreed, among others, that Maria Manuel Vda. De Biascan, the lawful wife
of the deceased Florencio Biascan, private respondent Rosalina Biascan and
her brother, German Biascan, are entitled to participate in the settlement
proceedings. Moreover, the said Order likewise denied Marias motion to set
aside the order appointing private respondent as regular administratrix of the
estate. These rulings of the trial court were precisely questioned by Maria in
her Motion for Reconsideration dated June 6, 1981.
The ruling of the trial court that Maria, private respondent Rosalina
Biascan and German Biascan were entitled to participate in the settlement
proceedings falls squarely under paragraph (b), Section 1, Rule 109 of the
Rules of Court as a proper subject of appeal. By so ruling, the trial court has
effectively determined that the three persons are the lawful heirs of the
deceased. As such, the same may be the proper subject of an appeal.
Similarly, the ruling of the trial court denying petitioners motion to set
aside the order appointing private respondent as the regular administratrix of
the estate of Florencio Bisacan is likewise a proper subject of an appeal. We
have previously held that an order of the trial court appointing a regular

administrator of a deceased persons estate is a final determination of the

rights of the parties thereunder, and is thus, appealable.[24] This is in
contrast with an order appointing a special administrator who is appointed
only for a limited time and for a specific purpose. Because of the temporary
character and special character of this appointment, the Rules deem it not
advisable
for
any
party
to
appeal
from
said
temporary
appointment.[25] Considering however that private respondent has aleready
been appointed as regular administratrix of the estate of Florencio Biascan,
her appointment as such may be questioned before the appellate court by
way of appeal.
It is thus clear that the Order dated April 2, 1981 may be the proper
subject of an appeal in a special proceeding. In special proceedings, such as
the instant proceeding for settlement of estate, the period of appeal from
any decision or final order rendered therein is thirty (30) days, a notice of
appeal and a record on appeal being required.[26] The appeal period may
only be interrupted by the filing of a motion for new trial or
reconsideration. Once the appeal period expires without an appeal or a
motion for reconsideration or new trial being perfected, the decision or order
becomes final.
With respect to the Order dated April 2, 1981 issued by the trial court,
petitioner admits that Maria Manuel Vda. De Biascan, its predecessor-ininterest, received a copy of the same of April 9, 1981. Applying these rules,
Maria or her counsel had thirty (30) days or until May 9 within which to file a
notice of appeal with record on appeal. She may also file a motion for
reconsideration, in which case the appeal period is deemed interrupted.
Considering that it was only June 6, 1981, or a full fifty-eight (58) days
after receipt of the order, that a motion for reconsideration was filed, it is
clear that the same was filed out of time. As such, when the said motion for
reconsideration was filed, there was no more appeal period to interrupt as
the Order had already become final.
Petitioner insists, however, that the order dated April 2, 1981 of the trial
court did not become final and executory as no opposition on its timeliness
was filed and no ruling as regards its timeliness was made. Petitioner argues
that although its motion for reconsideration was denied in the Order dated
April 30, 1985, the denial was made on grounds other than its failure to ask
for a reconsideration within the period prescribed by law. As such, petitioner
concludes, any procedural defect attending the Motion for Reconsideration
was deemed cured when the trial court, in its Order dated April 30, 1985,
took cognizance of the same and rendered its ruling thereon.
There is no merit in this argument.

It is well-settled that judgment or orders become final and executory by

operation of law and not by judicial declaration. Thus, finality of a judgment
becomes a fact upon the lapse of the reglementary period of appeal if no
appeal is perfected[27] or motion for reconsideration or new trial is filed. The
trial court need not even pronounce the finality of the order as the same
becomes final by operation of law. In fact, the trial court could not even
validly entertain a motion for reconsideration filed after the lapse of the
period for taking an appeal.[28] As such, it is of no moment that the opposing
party failed to object to the timeliness of the motion for reconsideration or
that the court denied the same on grounds other than timeliness considering
that at the time the motion was filed, the Order dated April 2, 1981 had
already become final and executory. Being final and executory, the trial
court can no longer alter, modify, or reverse the questioned order.[29] The
subsequent filing of the motion for reconsideration cannot disturb the finality
of the judgment or order.[30]
Even if we assume that the Motion for Reconsideration filed by
petitioner had the effect of suspending the running of the appeal period for
the April 2, 1981 Order, it is clear that petitioners notice of appeal of the
orders of the trial court was still filed out of time.
Under Section 3, Rule 41 of the Rules of Court then applicable, the time
during which a motion to set aside the judgment or order or for a new trial
shall be deducted from the period from which to make an appeal. The rule
further states that where the motion was filed during office hours of the last
day of the appeal period, the appeal must be perfected within the day
following that in which the party appealing received notice of the denial of
said motion.
The Order of the trial court denying petitioners Motion for
Reconsideration of the April 2, 1981 Order was issued on April 30,
1985. Allegedly, petitioner was only made aware of this April 30, 1985 Order
on August 21, 1996 when it inquired from the trial court about the status of
the case. Giving petitioner the benefit of the doubt that it had indeed
received notice of the order denying its motion for reconsideration on August
21, 1996, it follows that petitioner only had until the following day or on
August 22, 1996 within which to perfect the appeal.
At this point, we note with disapproval petitioners attempt to pass off
its Notice of Appeal as having been filed on August 22, 1996. In all its
pleadings before this Court and the Court of Appeals, petitioner insists that
its Notice of Appeal was filed the day after it secured the August 21, 1996
Certification from the trial court. While the Notice of Appeal was ostensibly
dated August 22, 1996, it is clear from the stamp[31] of the trial court that the
same was received only on September 20, 1996. Moreover, in the Order
dated October 22, 1996 of the trial court denying petitioners appeal, the

court clearly stated that the Notice of Appeal with accompanying Record on
Appeal was filed on September 20, 1996.
Considering that it is clear from the records that petitioners notice of
appeal was filed on September 20, 1996, the same was clearly filed out of
time as it only had until August 22, 1996 within which to file the said
pleading. And while the rules on special proceedings recognize that a motion
for extension of time to file the notice of appeal and record of appeal may be
granted,[32]
WHEREFORE, premises considered, we hereby DISMISS the petition
for lack of merit. The decision dated February 16, 1999 and the Resolution
dated May 18, 1999 of the Court of Appeals are hereby AFFIRMED.
SO ORDERED.