Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-63915 April 24, 1985
LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN
VENUS, in his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA CRUZ,
in his capacity as Director, Malacaang Records Office, and FLORENDO S. PABLO, in his capacity as
Director, Bureau of Printing, respondents.

ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6, Article
IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and enforceable must be
published in the Official Gazette or otherwise effectively promulgated, petitioners seek a writ of mandamus to
compel respondent public officials to publish, and/or cause the publication in the Official Gazette of various
presidential decrees, letters of instructions, general orders, proclamations, executive orders, letter of
implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265,
286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429,
445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718,
731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143,
1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 18191826, 1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161,
173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239,
241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303,
309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405,
438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609,
610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940,
964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535,
1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628,
1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751,
1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814,
1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849,

1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963,
1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510,
522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593,
594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95,
107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed outright on the ground that
petitioners have no legal personality or standing to bring the instant petition. The view is submitted that in the
absence of any showing that petitioners are personally and directly affected or prejudiced by the alleged nonpublication of the presidential issuances in question 2 said petitioners are without the requisite legal personality
to institute this mandamus proceeding, they are not being "aggrieved parties" within the meaning of Section 3,
Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.When any tribunal, corporation, board or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another from the use a rd enjoyment of a right or
office to which such other is entitled, and there is no other plain, speedy and adequate remedy
in the ordinary course of law, the person aggrieved thereby may file a verified petition in the
proper court alleging the facts with certainty and praying that judgment be rendered
commanding the defendant, immediately or at some other specified time, to do the act required
to be done to Protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and its
object is to compel the performance of a public duty, they need not show any specific interest for their petition
to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to a private
individual only in those cases where he has some private or particular interest to be subserved, or some
particular right to be protected, independent of that which he holds with the public at large," and "it is for the
public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell vs. Boardmen,
79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the mandamus is to
procure the enforcement of a public duty, the people are regarded as the real party in interest and the relator at
whose instigation the proceedings are instituted need not show that he has any legal or special interest in the
result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws [High,
Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party to
the mandamus proceedings brought to compel the Governor General to call a special election for the position
of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T.
Trent said:
We are therefore of the opinion that the weight of authority supports the proposition that the
relator is a proper party to proceedings of this character when a public right is sought to be
enforced. If the general rule in America were otherwise, we think that it would not be applicable

to the case at bar for the reason 'that it is always dangerous to apply a general rule to a
particular case without keeping in mind the reason for the rule, because, if under the particular
circumstances the reason for the rule does not exist, the rule itself is not applicable and reliance
upon the rule may well lead to error'
No reason exists in the case at bar for applying the general rule insisted upon by counsel for the
respondent. The circumstances which surround this case are different from those in the United
States, inasmuch as if the relator is not a proper party to these proceedings no other person
could be, as we have seen that it is not the duty of the law officer of the Government to appear
and represent the people in cases of this character.
The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned case
apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein is a public
right recognized by no less than the fundamental law of the land. If petitioners were not allowed to institute this
proceeding, it would indeed be difficult to conceive of any other person to initiate the same, considering that
the Solicitor General, the government officer generally empowered to represent the people, has entered his
appearance for respondents in this case.
Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for the
effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus submitted that
since the presidential issuances in question contain special provisions as to the date they are to take effect,
publication in the Official Gazette is not indispensable for their effectivity. The point stressed is anchored on
Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the
Official Gazette, unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's construction of said article. In a long line of
decisions, 4 this Court has ruled that publication in the Official Gazette is necessary in those cases where the
legislation itself does not provide for its effectivity date-for then the date of publication is material for
determining its date of effectivity, which is the fifteenth day following its publication-but not when the law itself
provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with the
fact of publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is
easily reached that said Article 2 does not preclude the requirement of publication in the Official Gazette, even
if the law itself provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides as
follows:
Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and
resolutions of a public nature of the, Congress of the Philippines; [2] all executive and
administrative orders and proclamations, except such as have no general applicability; [3]
decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be
deemed by said courts of sufficient importance to be so published; [4] such documents or
classes of documents as may be required so to be published by law; and [5] such documents or
classes of documents as the President of the Philippines shall determine from time to time to
have general applicability and legal effect, or which he may authorize so to be published. ...
The clear object of the above-quoted provision is to give the general public adequate notice of the various laws
which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be
no basis for the application of the maxim "ignorantia legis non excusat." It would be the height of injustice to

punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not
even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital
significance that at this time when the people have bestowed upon the President a power heretofore enjoyed
solely by the legislature. While the people are kept abreast by the mass media of the debates and deliberations
in the Batasan Pambansaand for the diligent ones, ready access to the legislative recordsno such publicity
accompanies the law-making process of the President. Thus, without publication, the people have no means of
knowing what presidential decrees have actually been promulgated, much less a definite way of informing
themselves of the specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la
denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos, Instrucciones,
Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno en uso de su potestad. 5
The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official
Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative duty. That duty
must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be
given substance and reality. The law itself makes a list of what should be published in the Official Gazette.
Such listing, to our mind, leaves respondents with no discretion whatsoever as to what must be included or
excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law.
Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise
impose a burden or. the people, such as tax and revenue measures, fall within this category. Other presidential
issuances which apply only to particular persons or class of persons such as administrative and executive
orders need not be published on the assumption that they have been circularized to all concerned. 6
It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he
must first be officially and specifically informed of its contents. As Justice Claudio Teehankee said in Peralta vs.
COMELEC 7:
In a time of proliferating decrees, orders and letters of instructions which all form part of the law
of the land, the requirement of due process and the Rule of Law demand that the Official
Gazette as the official government repository promulgate and publish the texts of all such
decrees, orders and instructions so that the people may know where to obtain their official and
specific contents.
The Court therefore declares that presidential issuances of general application, which have not been
published, shall have no force and effect. Some members of the Court, quite apprehensive about the possible
unsettling effect this decision might have on acts done in reliance of the validity of those presidential decrees
which were published only during the pendency of this petition, have put the question as to whether the Court's
declaration of invalidity apply to P.D.s which had been enforced or implemented prior to their publication. The
answer is all too familiar. In similar situations in the past this Court had taken the pragmatic and realistic course
set forth in Chicot County Drainage District vs. Baxter Bank 8 to wit:
The courts below have proceeded on the theory that the Act of Congress, having been found to
be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no
duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118
U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however,
that such broad statements as to the effect of a determination of unconstitutionality must be
taken with qualifications. The actual existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly be ignored. The past cannot

always be erased by a new judicial declaration. The effect of the subsequent ruling as to
invalidity may have to be considered in various aspects-with respect to particular conduct,
private and official. Questions of rights claimed to have become vested, of status, of prior
determinations deemed to have finality and acted upon accordingly, of public policy in the light
of the nature both of the statute and of its previous application, demand examination. These
questions are among the most difficult of those which have engaged the attention of courts,
state and federal and it is manifest from numerous decisions that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified.
Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party under the
Moratorium Law, albeit said right had accrued in his favor before said law was declared unconstitutional by this
Court.
Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official
Gazette is "an operative fact which may have consequences which cannot be justly ignored. The past cannot
always be erased by a new judicial declaration ... that an all-inclusive statement of a principle of absolute
retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees sought
by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive,
1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither the subject matters nor the texts of
these PDs can be ascertained since no copies thereof are available. But whatever their subject matter may be,
it is undisputed that none of these unpublished PDs has ever been implemented or enforced by the
government. In Pesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled that "publication is
necessary to apprise the public of the contents of [penal] regulations and make the said penalties binding on
the persons affected thereby. " The cogency of this holding is apparently recognized by respondent officials
considering the manifestation in their comment that "the government, as a matter of policy, refrains from
prosecuting violations of criminal laws until the same shall have been published in the Official Gazette or in
some other publication, even though some criminal laws provide that they shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished
presidential issuances which are of general application, and unless so published, they shall have no binding
force and effect.
SO ORDERED.
Relova, J., concurs.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice
Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the requirement of publication
in the Official Gazette for unpublished "presidential issuances" to have binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if made to apply
adversely to a party who is not even aware of the existence of any legislative or executive act having the force
and effect of law. My point is that such publication required need not be confined to the Official Gazette. From
the pragmatic standpoint, there is an advantage to be gained. It conduces to certainty. That is too be admitted.
It does not follow, however, that failure to do so would in all cases and under all circumstances result in a
statute, presidential decree or any other executive act of the same category being bereft of any binding force
and effect. To so hold would, for me, raise a constitutional question. Such a pronouncement would lend itself to
the interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless
published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana so aptly
pointed out. It is true that what is decided now applies only to past "presidential issuances". Nonetheless, this
clarification is, to my mind, needed to avoid any possible misconception as to what is required for any statute
or presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph sets
forth what to me is the constitutional doctrine applicable to this case. Thus: "The Philippine Constitution does
not require the publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. It
may be said though that the guarantee of due process requires notice of laws to affected Parties before they
can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due
process clause is not that precise. 1 I am likewise in agreement with its closing paragraph: "In fine, I concur in
the majority decision to the extent that it requires notice before laws become effective, for no person should be
bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that
such notice shall be by publication in the Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must be
ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the level of mere
futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to repeat, is thus
essential. What I am not prepared to subscribe to is the doctrine that it must be in the Official Gazette. To be
sure once published therein there is the ascertainable mode of determining the exact date of its effectivity. Still
for me that does not dispose of the question of what is the jural effect of past presidential decrees or executive
acts not so published. For prior thereto, it could be that parties aware of their existence could have conducted
themselves in accordance with their provisions. If no legal consequences could attach due to lack of
publication in the Official Gazette, then serious problems could arise. Previous transactions based on such
"Presidential Issuances" could be open to question. Matters deemed settled could still be inquired into. I am
not prepared to hold that such an effect is contemplated by our decision. Where such presidential decree or
executive act is made the basis of a criminal prosecution, then, of course, its ex post facto character becomes
evident. 5 In civil cases though, retroactivity as such is not conclusive on the due process aspect. There must
still be a showing of arbitrariness. Moreover, where the challenged presidential decree or executive act was
issued under the police power, the non-impairment clause of the Constitution may not always be successfully
invoked. There must still be that process of balancing to determine whether or not it could in such a case be
tainted by infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional application.
That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication is
essential to the effectivity of a legislative or executive act of a general application. I am not in agreement with
the view that such publication must be in the Official Gazette. The Civil Code itself in its Article 2 expressly
recognizes that the rule as to laws taking effect after fifteen days following the completion of their publication in

the Official Gazette is subject to this exception, "unless it is otherwise provided." Moreover, the Civil Code is
itself only a legislative enactment, Republic Act No. 386. It does not and cannot have the juridical force of a
constitutional command. A later legislative or executive act which has the force and effect of law can legally
provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential
decrees and executive acts not thus previously published in the Official Gazette would be devoid of any legal
character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted, with undesirable
consequences. I find myself therefore unable to yield assent to such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this separate
opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice Herrera. The
Rule of Law connotes a body of norms and laws published and ascertainable and of equal application to all
similarly circumstances and not subject to arbitrary change but only under certain set procedures. The Court
has consistently stressed that "it is an elementary rule of fair play and justice that a reasonable opportunity to
be informed must be afforded to the people who are commanded to obey before they can be punished for its
violation, 1 citing the settled principle based on due process enunciated in earlier cases that "before the public
is bound by its contents, especially its penal provisions, a law, regulation or circular must first be published and
the people officially and specially informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the Revised
Administrative Code, there would be no basis nor justification for the corollary rule of Article 3 of the Civil Code
(based on constructive notice that the provisions of the law are ascertainable from the public and official
repository where they are duly published) that "Ignorance of the law excuses no one from compliance
therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are silent
as to their effectivity [date] need be published in the Official Gazette for their effectivity" is manifestly untenable.
The plain text and meaning of the Civil Code is that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided, " i.e. a different effectivity
date is provided by the law itself. This proviso perforce refers to a law that has been duly published pursuant to
the basic constitutional requirements of due process. The best example of this is the Civil Code itself: the same
Article 2 provides otherwise that it "shall take effect [only] one year [not 15 days] after such publication. 2 To
sustain respondents' misreading that "most laws or decrees specify the date of their effectivity and for this
reason, publication in the Official Gazette is not necessary for their effectivity 3 would be to nullify and render
nugatory the Civil Code's indispensable and essential requirement of prior publication in the Official Gazette by
the simple expedient of providing for immediate effectivity or an earlier effectivity date in the law
itself before the completion of 15 days following its publication which is the period generally fixed by the Civil
Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to be
published. What I would like to state in connection with that proposition is that when a date of effectivity is
mentioned in the decree but the decree becomes effective only fifteen (15) days after its publication in the
Official Gazette, it will not mean that the decree can have retroactive effect to the date of effectivity mentioned
in the decree itself. There should be no retroactivity if the retroactivity will run counter to constitutional rights or
shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike
some Constitutions elsewhere. * It may be said though that the guarantee of due process requires notice of
laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in
the Official Gazette. The due process clause is not that precise. Neither is the publication of laws in the Official
Gazette required by any statute as a prerequisite for their effectivity, if said laws already provide for their
effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided " Two things may be said of this provision:
Firstly, it obviously does not apply to a law with a built-in provision as to when it will take effect. Secondly, it
clearly recognizes that each law may provide not only a different period for reckoning its effectivity date but
also a different mode of notice. Thus, a law may prescribe that it shall be published elsewhere than in the
Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws must
be published in the Official Gazette. The said law is simply "An Act to Provide for the Uniform Publication and
Distribution of the Official Gazette." Conformably therewith, it authorizes the publication of the Official Gazette,
determines its frequency, provides for its sale and distribution, and defines the authority of the Director of
Printing in relation thereto. It also enumerates what shall be published in the Official Gazette, among them,
"important legislative acts and resolutions of a public nature of the Congress of the Philippines" and "all
executive and administrative orders and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the Official Gazette but only "important"
ones "of a public nature." Moreover, the said law does not provide that publication in the Official Gazette is
essential for the effectivity of laws. This is as it should be, for all statutes are equal and stand on the same
footing. A law, especially an earlier one of general application such as Commonwealth Act No. 638, cannot
nullify or restrict the operation of a subsequent statute that has a provision of its own as to when and how it will
take effect. Only a higher law, which is the Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no
person should be bound by a law without notice. This is elementary fairness. However, I beg to disagree
insofar as it holds that such notice shall be by publication in the Official Gazette.
Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication being in
the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or general
applicability ineffective, until due publication thereof.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 80718 January 29, 1988
FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners,
vs.
COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUIS BERNAL, JR., HEIRS OF
MARISSA BERNAL, namely, GLICERIA DELA CRUZ BERNAL and LUIS BERNAL, SR., respondents.
RESOLUTION

CORTES, J.:
This special civil action for certiorari seeks to declare null and void two (2) resolutions of the Special First
Division of the Court of Appeals in the case of Luis Bernal, Sr., et al. v. Felisa Perdosa De Roy, et al., CA-G.R.
CV No. 07286. The first resolution promulgated on 30 September 1987 denied petitioners' motion for extension
of time to file a motion for reconsideration and directed entry of judgment since the decision in said case had
become final; and the second Resolution dated 27 October 1987 denied petitioners' motion for reconsideration
for having been filed out of time.

At the outset, this Court could have denied the petition outright for not being verified as required by Rule 65
section 1 of the Rules of Court. However, even if the instant petition did not suffer from this defect, this Court,
on procedural and substantive grounds, would still resolve to deny it.
The facts of the case are undisputed. The firewall of a burned-out building owned by petitioners collapsed and
destroyed the tailoring shop occupied by the family of private respondents, resulting in injuries to private
respondents and the death of Marissa Bernal, a daughter. Private respondents had been warned by petitioners
to vacate their shop in view of its proximity to the weakened wall but the former failed to do so. On the basis of
the foregoing facts, the Regional Trial Court. First Judicial Region, Branch XXXVIII, presided by the Hon.
Antonio M. Belen, rendered judgment finding petitioners guilty of gross negligence and awarding damages to
private respondents. On appeal, the decision of the trial court was affirmed in toto by the Court of Appeals in a
decision promulgated on August 17, 1987, a copy of which was received by petitioners on August 25, 1987. On
September 9, 1987, the last day of the fifteen-day period to file an appeal, petitioners filed a motion for
extension of time to file a motion for reconsideration, which was eventually denied by the appellate court in the
Resolution of September 30, 1987. Petitioners filed their motion for reconsideration on September 24, 1987 but
this was denied in the Resolution of October 27, 1987.
This Court finds that the Court of Appeals did not commit a grave abuse of discretion when it denied
petitioners' motion for extension of time to file a motion for reconsideration, directed entry of judgment and
denied their motion for reconsideration. It correctly applied the rule laid down in Habaluyas Enterprises, Inc. v.
Japzon, [G.R. No. 70895, August 5, 1985,138 SCRA 461, that the fifteen-day period for appealing or for filing a
motion for reconsideration cannot be extended. In its Resolution denying the motion for reconsideration,
promulgated on July 30, 1986 (142 SCRA 208), this Court en banc restated and clarified the rule, to wit:
Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that no motion
for extension of time to file a motion for reconsideration may be filed with the Metropolitan or Municipal Trial
Courts, the Regional Trial Courts, and the Intermediate Appellate Court. Such a motion may be filed only in
cases pending with the Supreme Court as the court of last resort, which may in its sound discretion either grant
or deny the extension requested. (at p. 212)
Lacsamana v. Second Special Cases Division of the intermediate Appellate Court, [G.R. No. 73146-53, August
26, 1986, 143 SCRA 643], reiterated the rule and went further to restate and clarify the modes and periods of
appeal.
Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986,144 SCRA 161],stressed the
prospective application of said rule, and explained the operation of the grace period, to wit:
In other words, there is a one-month grace period from the promulgation on May 30, 1986 of the
Court's Resolution in the clarificatory Habaluyas case, or up to June 30, 1986, within which the
rule barring extensions of time to file motions for new trial or reconsideration is, as yet, not
strictly enforceable.
Since petitioners herein filed their motion for extension on February 27, 1986, it is still within the
grace period, which expired on June 30, 1986, and may still be allowed.
This grace period was also applied in Mission v. Intermediate Appellate Court [G.R. No. 73669, October 28,
1986, 145 SCRA 306].]
In the instant case, however, petitioners' motion for extension of time was filed on September 9, 1987, more
than a year after the expiration of the grace period on June 30, 1986. Hence, it is no longer within the coverage
of the grace period. Considering the length of time from the expiration of the grace period to the promulgation
of the decision of the Court of Appeals on August 25, 1987, petitioners cannot seek refuge in the ignorance of

their counsel regarding said rule for their failure to file a motion for reconsideration within the reglementary
period.
Petitioners contend that the rule enunciated in the Habaluyas case should not be made to apply to the case at
bar owing to the non-publication of the Habaluyas decision in the Official Gazette as of the time the subject
decision of the Court of Appeals was promulgated. Contrary to petitioners' view, there is no law requiring the
publication of Supreme Court decisions in the Official Gazette before they can be binding and as a condition to
their becoming effective. It is the bounden duty of counsel as lawyer in active law practice to keep abreast of
decisions of the Supreme Court particularly where issues have been clarified, consistently reiterated, and
published in the advance reports of Supreme Court decisions (G. R. s) and in such publications as the
Supreme Court Reports Annotated (SCRA) and law journals.
This Court likewise finds that the Court of Appeals committed no grave abuse of discretion in affirming the trial
court's decision holding petitioner liable under Article 2190 of the Civil Code, which provides that "the proprietor
of a building or structure is responsible for the damage resulting from its total or partial collapse, if it should be
due to the lack of necessary repairs.
Nor was there error in rejecting petitioners argument that private respondents had the "last clear chance" to
avoid the accident if only they heeded the. warning to vacate the tailoring shop and , therefore, petitioners prior
negligence should be disregarded, since the doctrine of "last clear chance," which has been applied to
vehicular accidents, is inapplicable to this case.
WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant petition for lack of merit.
Fernan (Chairman), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-6791

March 29, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
QUE PO LAY, defendant-appellant.
Prudencio de Guzman for appellant.
First Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Lauro G. Marquez for appellee.
MONTEMAYOR, J.:
Que Po Lay is appealing from the decision of the Court of First Instance of Manila, finding him guilty of violating
Central Bank Circular No. 20 in connection with section 34 of Republic Act No. 265, and sentencing him to
suffer six months imprisonment, to pay a fine of P1,000 with subsidiary imprisonment in case of insolvency,
and to pay the costs.
The charge was that the appellant who was in possession of foreign exchange consisting of U.S. dollars, U.S.
checks and U.S. money orders amounting to about $7,000 failed to sell the same to the Central Bank through
its agents within one day following the receipt of such foreign exchange as required by Circular No. 20. the
appeal is based on the claim that said circular No. 20 was not published in the Official Gazette prior to the act
or omission imputed to the appellant, and that consequently, said circular had no force and effect. It is
contended that Commonwealth Act. No., 638 and Act 2930 both require said circular to be published in the
Official Gazette, it being an order or notice of general applicability. The Solicitor General answering this
contention says that Commonwealth Act. No. 638 and 2930 do not require the publication in the Official
Gazette of said circular issued for the implementation of a law in order to have force and effect.
We agree with the Solicitor General that the laws in question do not require the publication of the circulars,
regulations and notices therein mentioned in order to become binding and effective. All that said two laws
provide is that laws, resolutions, decisions of the Supreme Court and Court of Appeals, notices and documents
required by law to be of no force and effect. In other words, said two Acts merely enumerate and make a list of

what should be published in the Official Gazette, presumably, for the guidance of the different branches of the
Government issuing same, and of the Bureau of Printing.
However, section 11 of the Revised Administrative Code provides that statutes passed by Congress shall, in
the absence of special provision, take effect at the beginning of the fifteenth day after the completion of the
publication of the statute in the Official Gazette. Article 2 of the new Civil Code (Republic Act No. 386) equally
provides that laws shall take effect after fifteen days following the completion of their publication in the Official
Gazette, unless it is otherwise provided. It is true that Circular No. 20 of the Central Bank is not a statute or law
but being issued for the implementation of the law authorizing its issuance, it has the force and effect of law
according to settled jurisprudence. (See U.S. vs. Tupasi Molina, 29 Phil., 119 and authorities cited therein.)
Moreover, as a rule, circulars and regulations especially like the Circular No. 20 of the Central Bank in question
which prescribes a penalty for its violation should be published before becoming effective, this, on the general
principle and theory that before the public is bound by its contents, especially its penal provisions, a law,
regulation or circular must first be published and the people officially and specifically informed of said contents
and its penalties.
Our Old Civil code, ( Spanish Civil Code of 1889) has a similar provision about the effectivity of laws, (Article 1
thereof), namely, that laws shall be binding twenty days after their promulgation, and that their promulgation
shall be understood as made on the day of the termination of the publication of the laws in the Gazette.
Manresa, commenting on this article is of the opinion that the word "laws" include regulations and circulars
issued in accordance with the same. He says:
El Tribunal Supremo, ha interpretado el articulo 1. del codigo Civil en Sentencia de 22 de Junio de
1910, en el sentido de que bajo la denominacion generica de leyes, se comprenden tambien
los Reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordenes dictadas de
conformidad con las mismas por el Gobierno en uso de su potestad. Tambien el poder ejecutivo lo ha
venido entendiendo asi, como lo prueba el hecho de que muchas de sus disposiciones contienen la
advertencia de que empiezan a regir el mismo dia de su publicacion en la Gaceta, advertencia que
seria perfectamente inutil si no fuera de aplicacion al caso el articulo 1.o del Codigo Civil. (Manresa,
Codigo Civil Espaol, Vol. I. p. 52).
In the present case, although circular No. 20 of the Central Bank was issued in the year 1949, it was not
published until November 1951, that is, about 3 months after appellant's conviction of its violation. It is clear
that said circular, particularly its penal provision, did not have any legal effect and bound no one until its
publication in the Official Gazzette or after November 1951. In other words, appellant could not be held liable
for its violation, for it was not binding at the time he was found to have failed to sell the foreign exchange in his
possession thereof.
But the Solicitor General also contends that this question of non-publication of the Circular is being raised for
the first time on appeal in this Court, which cannot be done by appellant. Ordinarily, one may raise on appeal
any question of law or fact that has been raised in the court below and which is within the issues made by the
parties in their pleadings. (Section 19, Rule 48 of the Rules of Court). But the question of non-publication is
fundamental and decisive. If as a matter of fact Circular No. 20 had not been published as required by law
before its violation, then in the eyes of the law there was no such circular to be violated and consequently
appellant committed no violation of the circular or committed any offense, and the trial court may be said to
have had no jurisdiction. This question may be raised at any stage of the proceeding whether or not raised in
the court below.
In view of the foregoing, we reverse the decision appealed from and acquit the appellant, with costs de oficio.
Paras, C.J., Bengzon, Padilla, Reyes, Bautista Angelo, Labrador, Concepcion and Diokno, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 176006

March 26, 2010

NATIONAL POWER CORPORATION, Petitioner,

vs.
PINATUBO COMMERCIAL, represented by ALFREDO A. DY, Respondent.
DECISION
CORONA, J.:
The National Power Corporation (NPC)1 questions the decision dated June 30, 2006 rendered by the Regional
Trial Court (RTC) of Mandaluyong City, Branch 213 declaring items 3 and 3.1 of NPC Circular No. 99-75
unconstitutional. The dispositive portion of the decision provides:
WHEREFORE then, in view of the foregoing, judgment is hereby rendered declaring item[s] 3 and 3.1 of
NAPOCOR Circular No. 99-75, which [allow] only partnerships or corporations that
directly use aluminum as the raw material in producing finished products either purely or partly out of
aluminum, to participate in the bidding for the disposal of ACSR wires as unconstitutional for being violative of

substantial due process and the equal protection clause of the Constitution as well as for restraining
competitive free trade and commerce.
The claim for attorneys fees is denied for lack of merit.
No costs.
SO ORDERED.2
NPC also assails the RTC resolution dated November 20, 2006 denying its motion for reconsideration for lack
of merit.3
In this petition, NPC poses the sole issue for our review:
WHETHER OR NOT THE RTC GRAVELY ERRED WHEN IT DECLARED ITEMS 3 AND 3.1 OF NAPOCOR
CIRCULAR NO. 99-75 AS UNCONSTITUTIONAL FOR BEING VIOLATIVE OF SUBSTANTIAL DUE
PROCESS AND THE EQUAL PROTECTION CLAUSE OF THE CONSTITUTION AS WELL AS FOR
RESTRAINING COMPETITIVE FREE TRADE AND COMMERCE.4
NPC Circular No. 99-755 dated October 8, 1999 set the guidelines in the "disposal of scrap aluminum
conductor steel-reinforced or ACSRs in order to decongest and maintain good housekeeping in NPC
installations and to generate additional income for NPC." Items 3 and 3.1 of the circular provide:
3. QUALIFIED BIDDERS
3.1 Qualified bidders envisioned in this circular are partnerships or corporations that directly use aluminum as
the raw material in producing finished products either purely or partly out of aluminum, or their duly appointed
representatives. These bidders may be based locally or overseas.6
In April 2003, NPC published an invitation for the pre-qualification of bidders for the public sale of its scrap
ACSR7cables. Respondent Pinatubo Commercial, a trader of scrap materials such as copper, aluminum, steel
and other ferrous and non-ferrous materials, submitted a pre-qualification form to NPC. Pinatubo, however,
was informed in a letter dated April 29, 2003 that its application for pre-qualification had been
denied.8 Petitioner asked for reconsideration but NPC denied it.9
Pinatubo then filed a petition in the RTC for the annulment of NPC Circular No. 99-75, with a prayer for the
issuance of a temporary restraining order and/or writ of preliminary injunction.10 Pinatubo argued that the
circular was unconstitutional as it violated the due process and equal protection clauses of the Constitution,
and ran counter to the government policy of competitive public bidding.11
The RTC upheld Pinatubos position and declared items 3 and 3.1 of the circular unconstitutional. The RTC
ruled that it was violative of substantive due process because, while it created rights in favor of third parties,
the circular had not been published. It also pronounced that the circular violated the equal protection clause
since it favored manufacturers and processors of aluminum scrap vis--vis dealers/traders in the purchase of
aluminum ACSR cables from NPC. Lastly, the RTC found that the circular denied traders the right to exercise
their business and restrained free competition inasmuch as it allowed only a certain sector to participate in the
bidding.12
In this petition, NPC insists that there was no need to publish the circular since it was not of general
application. It was addressed only to particular persons or class of persons, namely the disposal committees,
heads of offices, regional and all other officials involved in the disposition of ACSRs. NPC also contends that
there was a substantial distinction between manufacturers and traders of aluminum scrap materials specially
viewed in the light of RA 7832.13 According to NPC, by limiting the prospective bidders to manufacturers, it
could easily monitor the market of its scrap ACSRs. There was rampant fencing of stolen NPC wires. NPC

likewise maintains that traders were not prohibited from participating in the pre-qualification as long as they
had a tie-up with a manufacturer.14
The questions that need to be resolved in this case are:
(1) whether NPC Circular No. 99-75 must be published; and
(2) whether items 3 and 3.1 of NPC Circular No. 99-75 (a) violated the equal protection clause of the Constitution and
(b) restrained free trade and competition.
Taada v. Tuvera15 stressed the need for publication in order for statutes and administrative rules and
regulations to have binding force and effect, viz.:
x x x all statutes, including those of local application and private laws, shall be published as a condition for their
effectivity, which shall begin fifteen days after publication unless a different effectivity is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by the President in the
exercise of legislative power or, at present, directly conferred by the Constitution. Administrative Rules and
Regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a
valid delegation.16
Taada, however, qualified that:
Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the
administrative agency and not the public, need not be published. Neither is publication required of the so-called
letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by
their subordinates in the performance of their duties.17 (emphasis ours)
In this case, NPC Circular No. 99-75 did not have to be published since it was merely an internal rule or
regulation. It did not purport to enforce or implement an existing law but was merely a directive issued by the
NPC President to his subordinates to regulate the proper and efficient disposal of scrap ACSRs to qualified
bidders. Thus, NPC Circular No. 99-75 defined the responsibilities of the different NPC personnel in the
disposal, pre-qualification, bidding and award of scrap ACSRS.18 It also provided for the deposit of a proposal
bond to be submitted by bidders, the approval of the award, mode of payment and release of awarded scrap
ACSRs.19 All these guidelines were addressed to the NPC personnel involved in the bidding and award of
scrap ACSRs. It did not, in any way, affect the rights of the public in general or of any other person not involved
in the bidding process. Assuming it affected individual rights, it did so only remotely, indirectly and incidentally.
Pinatubos argument that items 3 and 3.1 of NPC Circular No. 99-75 deprived it of its "right to bid" or that these
conferred such right in favor of a third person is erroneous. Bidding, in its comprehensive sense, means
making an offer or an invitation to prospective contractors whereby the government manifests its intention to
invite proposals for the purchase of supplies, materials and equipment for official business or public use, or for
public works or repair.20 Bidding rules may specify other conditions or require that the bidding process be
subjected to certain reservations or qualifications.21 Since a bid partakes of the nature of an offer to contract
with the government,22 the government agency involved may or may not accept it. Moreover, being the owner
of the property subject of the bid, the government has the power to determine who shall be its recipient, as well
as under what terms it may be awarded. In this sense, participation in the bidding process is a privilege
inasmuch as it can only be exercised under existing criteria imposed by the government itself. As such,
prospective bidders, including Pinatubo, cannot claim any demandable right to take part in it if they fail to meet
these criteria. Thus, it has been stated that under the traditional form of property ownership, recipients of
privileges or largesse from the government cannot be said to have property rights because they possess no
traditionally recognized proprietary interest therein.23

Also, as the discretion to accept or reject bids and award contracts is of such wide latitude, courts will not
interfere, unless it is apparent that such discretion is exercised arbitrarily, or used as a shield to a fraudulent
award. The exercise of that discretion is a policy decision that necessitates prior inquiry, investigation,
comparison, evaluation, and deliberation. This task can best be discharged by the concerned government
agencies, not by the courts. Courts will not interfere with executive or legislative discretion exercised within
those boundaries. Otherwise, they stray into the realm of policy decision-making.24
Limiting qualified bidders in this case to partnerships or corporations that directly use aluminum as the raw
material in producing finished products made purely or partly of aluminum was an exercise of discretion by the
NPC. Unless the discretion was exercised arbitrarily or used as a subterfuge for fraud, the Court will not
interfere with the exercise of such discretion.
This brings to the fore the next question: whether items 3 and 3.1 of NPC Circular No. 99-75 violated the equal
protection clause of the Constitution.
The equal protection clause means that "no person or class of persons shall be deprived of the same
protection of laws which is enjoyed by other persons or other classes in the same place and in like
circumstances."25 The guaranty of the equal protection of the laws is not violated by a legislation based on a
reasonable classification.26The equal protection clause, therefore, does not preclude classification of
individuals who may be accorded different treatment under the law as long as the classification is reasonable
and not arbitrary.271avvphi1
Items 3 and 3.1 met the standards of a valid classification. Indeed, as juxtaposed by the RTC, the purpose of
NPC Circular No. 99-75 was to dispose of the ACSR wires.28 As stated by Pinatubo, it was also meant to earn
income for the government.29 Nevertheless, the disposal and revenue-generating objective of the circular was
not an end in itself and could not bar NPC from imposing conditions for the proper disposition and ultimately,
the legitimate use of the scrap ACSR wires. In giving preference to direct manufacturers and producers, it was
the intent of NPC to support RA 7832, which penalizes the theft of ACSR in excess of 100 MCM.30 The
difference in treatment between direct manufacturers and producers, on one hand, and traders, on the other,
was rationalized by NPC as follows:
x x x NAPOCOR can now easily monitor the market of its scrap ACSR wires and verify whether or not a
persons possession of such materials is legal or not; and consequently, prosecute under R.A. 7832, those
whose possession, control or custody of such material is unexplained. This is based upon the reasonable
presumption that if the buyer were a manufacturer or processor, the scrap ACSRs end with him as the latter
uses it to make finished products; but if the buyer were a trader, there is greater probability that the purchased
materials may pass from one trader to another. Should traders without tie-up to manufacturers or processors of
aluminum be allowed to participate in the bidding, the ACSRs bidded out to them will likely co-mingle with
those already proliferating in the illegal market. Thus, great difficulty shall be encountered by NAPOCOR
and/or those authorities tasked to implement R.A. 7832 in determining whether or not the ACSRs found in the
possession, control and custody of a person suspected of theft [of] electric power transmission lines and
materials are the fruit of the offense defined in Section 3 of R.A. 7832.31
Items 3 and 3.1 clearly did not infringe on the equal protection clause as these were based on a reasonable
classification intended to protect, not the right of any business or trade but the integrity of government property,
as well as promote the objectives of RA 7832. Traders like Pinatubo could not claim similar treatment as direct
manufacturers/processors especially in the light of their failure to negate the rationale behind the distinction.
Finally, items 3 and 3.1 of NPC Circular No. 99-75 did not restrain free trade or competition.
Pinatubo contends that the condition imposed by NPC under items 3 and 3.1 violated the principle of
competitiveness advanced by RA 9184 (Government Procurement Reform Act) which states:
SEC. 3. Governing Principles on Government Procurement. All procurement of the national government, its
departments, bureaus, offices and agencies, including state universities and colleges, government-owned

and/or controlled corporations, government financial institutions and local government units, shall, in all cases,
be governed by these principles:
xxx
(b) Competitiveness by extending equal opportunity to enable private contracting parties who
are eligible andqualified to participate in public bidding. (emphasis ours)
The foregoing provision imposed the precondition that the contracting parties should be eligible and qualified. It
should be emphasized that the bidding process was not a "free-for-all" where any and all interested parties,
qualified or not, could take part. Section 5(e) of RA 9184 defines competitive bidding as a "method of
procurement which is open to participation by any interested party and which consists of the following
processes: advertisement, pre-bid conference, eligibility screening of prospective bidders, receipt and
opening of bids, evaluation of bids, post-qualification, and award of contract x x x." The law categorically
mandates that prospective bidders are subject to eligibility screening, and as earlier stated, bidding rules may
specify other conditions or order that the bidding process be subjected to certain reservations or
qualifications.32 Thus, in its pre-qualification guidelines issued for the sale of scrap ACSRs, the NPC reserved
the right to pre-disqualify any applicant who did not meet the requirements for pre-qualification.33 Clearly, the
competitiveness policy of a bidding process presupposes the eligibility and qualification of a contestant;
otherwise, it defeats the principle that only "responsible" and "qualified" bidders can bid and be awarded
government contracts.34 Our free enterprise system is not based on a market of pure and unadulterated
competition where the State pursues a strict hands-off policy and follows the let-the-devil-devour-the-hindmost
rule.35
Moreover, the mere fact that incentives and privileges are granted to certain enterprises to the exclusion of
others does not render the issuance unconstitutional for espousing unfair competition.36 While the Constitution
enshrines free enterprise as a policy, it nonetheless reserves to the government the power to intervene
whenever necessary to promote the general welfare.37 In the present case, the unregulated disposal and sale
of scrap ACSR wires will hamper the governments effort of curtailing the pernicious practice of trafficking
stolen government property. This is an evil sought to be prevented by RA 7832 and certainly, it was well within
the authority of the NPC to prescribe conditions in order to prevent it.
WHEREFORE, the petition is hereby GRANTED. The decision of the Regional Trial Court of Mandaluyong
City, Branch 213 dated June 30, 2006 and resolution dated November 20, 2006 are REVERSED and SET
ASIDE. Civil Case No. MC-03-2179 for the annulment of NPC Circular No. 99-75 is hereby DISMISSED.
SO ORDERED.
RENATO C. CORONA
Associate Justice
Chairperson
WE CONCUR:
PRESBITERO J. VELASCO, JR.
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN*
Associate Justice

JOSE CATRAL MENDOZA

Associate Justice
AT T E S TAT I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONA
Associate Justice
Chairperson
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.
ANTONIO T. CARPIO
Acting Chief Justice

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 180643

September 4, 2008

ROMULO L. NERI, petitioner,

vs.

SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE

COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND
SECURITY, respondents.
RESOLUTION
LEONARDO-DE CASTRO, J.:
Executive privilege is not a personal privilege, but one that adheres to the Office of the President. It exists to
protect public interest, not to benefit a particular public official. Its purpose, among others, is to assure that the
nation will receive the benefit of candid, objective and untrammeled communication and exchange of
information between the President and his/her advisers in the process of shaping or forming policies and
arriving at decisions in the exercise of the functions of the Presidency under the Constitution. The
confidentiality of the Presidents conversations and correspondence is not unique. It is akin to the
confidentiality of judicial deliberations. It possesses the same value as the right to privacy of all citizens and
more, because it is dictated by public interest and the constitutionally ordained separation of governmental
powers.
In these proceedings, this Court has been called upon to exercise its power of review and arbitrate a hotly,
even acrimoniously, debated dispute between the Courts co-equal branches of government. In this task, this
Court should neither curb the legitimate powers of any of the co-equal and coordinate branches of government
nor allow any of them to overstep the boundaries set for it by our Constitution. The competing interests in the
case at bar are the claim of executive privilege by the President, on the one hand, and the respondent Senate
Committees assertion of their power to conduct legislative inquiries, on the other. The particular facts and
circumstances of the present case, stripped of the politically and emotionally charged rhetoric from both sides
and viewed in the light of settled constitutional and legal doctrines, plainly lead to the conclusion that the claim
of executive privilege must be upheld.
Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the "Decision"), granting the
petition for certiorari filed by petitioner Romulo L. Neri against the respondent Senate Committees on
Accountability of Public Officers and Investigations,1 Trade and Commerce,2 and National Defense and
Security (collectively the "respondent Committees").3
A brief review of the facts is imperative.
On September 26, 2007, petitioner appeared before respondent Committees and testified for about eleven (11)
hours on matters concerning the National Broadband Project (the "NBN Project"), a project awarded by the
Department of Transportation and Communications ("DOTC") to Zhong Xing Telecommunications Equipment
("ZTE"). Petitioner disclosed that then Commission on Elections ("COMELEC") Chairman Benjamin Abalos
offered him P200 Million in exchange for his approval of the NBN Project. He further narrated that he informed
President Gloria Macapagal Arroyo ("President Arroyo") of the bribery attempt and that she instructed him not
to accept the bribe. However, when probed further on President Arroyo and petitioners discussions relating to
the NBN Project, petitioner refused to answer, invoking "executive privilege." To be specific, petitioner refused
to answer questions on: (a) whether or not President Arroyo followed up the NBN Project,4 (b) whether or not
she directed him to prioritize it,5 and (c) whether or not she directed him to approve it.6
Respondent Committees persisted in knowing petitioners answers to these three questions by requiring him to
appear and testify once more on November 20, 2007. On November 15, 2007, Executive Secretary Eduardo
R. Ermita wrote to respondent Committees and requested them to dispense with petitioners testimony on the
ground of executive privilege.7 The letter of Executive Secretary Ermita pertinently stated:
Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and
correspondence between the President and public officials which are considered executive privilege
(Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002).
Maintaining the confidentiality of conversations of the President is necessary in the exercise of her

executive and policy decision making process. The expectation of a President to the confidentiality of
her conversations and correspondences, like the value which we accord deference for the privacy of all
citizens, is the necessity for protection of the public interest in candid, objective, and even blunt or
harsh opinions in Presidential decision-making. Disclosure of conversations of the President will have a
chilling effect on the President, and will hamper her in the effective discharge of her duties and
responsibilities, if she is not protected by the confidentiality of her conversations.
The context in which executive privilege is being invoked is that the information sought to be disclosed
might impair our diplomatic as well as economic relations with the Peoples Republic of China. Given
the confidential nature in which these information were conveyed to the President, he cannot provide
the Committee any further details of these conversations, without disclosing the very thing the privilege
is designed to protect.
In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive
privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-hour
hearing, wherein he has answered all questions propounded to him except the foregoing questions
involving executive privilege, we therefore request that his testimony on 20 November 2007 on the ZTE
/ NBN project be dispensed with.
On November 20, 2007, petitioner did not appear before respondent Committees upon orders of the President
invoking executive privilege. On November 22, 2007, the respondent Committees issued the show-cause letter
requiring him to explain why he should not be cited in contempt. On November 29, 2007, in petitioners reply to
respondent Committees, he manifested that it was not his intention to ignore the Senate hearing and that he
thought the only remaining questions were those he claimed to be covered by executive privilege. He also
manifested his willingness to appear and testify should there be new matters to be taken up. He just requested
that he be furnished "in advance as to what else" he "needs to clarify."
Respondent Committees found petitioners explanations unsatisfactory. Without responding to his request for
advance notice of the matters that he should still clarify, they issued the Order dated January 30, 2008; In Re:
P.S. Res. Nos. 127,129,136 & 144; and privilege speeches of Senator Lacson and Santiago (all on the ZTENBN Project), citing petitioner in contempt of respondent Committees and ordering his arrest and detention at
the Office of the Senate Sergeant-at-Arms until such time that he would appear and give his testimony.
On the same date, petitioner moved for the reconsideration of the above Order.8 He insisted that he had not
shown "any contemptible conduct worthy of contempt and arrest." He emphasized his willingness to testify on
new matters, but respondent Committees did not respond to his request for advance notice of questions. He
also mentioned the petition for certiorari he previously filed with this Court on December 7, 2007. According to
him, this should restrain respondent Committees from enforcing the order dated January 30, 2008 which
declared him in contempt and directed his arrest and detention.
Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for TRO/Preliminary
Injunction) on February 1, 2008. In the Courts Resolution dated February 4, 2008, the parties were required to
observe the status quo prevailing prior to the Order dated January 30, 2008.
On March 25, 2008, the Court granted his petition for certiorari on two grounds: first, the communications
elicited by the three (3) questions were covered by executive privilege; and second, respondent Committees
committed grave abuse of discretion in issuing the contempt order. Anent the first ground, we considered the
subject communications as falling under the presidential communications privilege because (a) they related
to a quintessential and non-delegable power of the President, (b) they were received by a close advisor of the
President, and (c) respondent Committees failed to adequately show a compelling need that would justify the
limitation of the privilege and the unavailability of the information elsewhere by an appropriate investigating
authority. As to the second ground, we found that respondent Committees committed grave abuse of discretion
in issuing the contempt order because (a) there was a valid claim of executive privilege, (b) their invitations to
petitioner did not contain the questions relevant to the inquiry, (c) there was a cloud of doubt as to the

regularity of the proceeding that led to their issuance of the contempt order, (d) they violated Section 21, Article
VI of the Constitution because their inquiry was not in accordance with the "duly published rules of procedure,"
and (e) they issued the contempt order arbitrarily and precipitately.
On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored on the
following grounds:
I
CONTRARY TO THIS HONORABLE COURTS DECISION, THERE IS NO DOUBT THAT THE
ASSAILED ORDERS WERE ISSUED BY RESPONDENT COMMITTEES PURSUANT TO THE
EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT MERELY THEIR OVERSIGHT
FUNCTIONS.
II
CONTRARY TO THIS HONORABLE COURTS DECISION, THERE CAN BE NO PRESUMPTION
THAT THE INFORMATION WITHHELD IN THE INSTANT CASE IS PRIVILEGED.
III
CONTRARY TO THIS HONORABLE COURTS DECISION, THERE IS NO FACTUAL OR LEGAL
BASIS TO HOLD THAT THE COMMUNICATIONS ELICITED BY THE SUBJECT THREE (3)
QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE, CONSIDERING THAT:
A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE PRIVILEGE IS
CLAIMED CONSTITUTE STATE SECRETS.
B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE DECISION IS APPLIED,
THERE IS NO SHOWING THAT THE ELEMENTS OF PRESIDENTIAL COMMUNICATIONS
PRIVILEGE ARE PRESENT.
C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A COMPELLING NEED TO JUSTIFY
THE DISCLOSURE OF THE INFORMATION SOUGHT.
D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE WOULD
SERIOUSLY IMPAIR THE RESPONDENTS PERFORMANCE OF THEIR PRIMARY FUNCTION TO
ENACT LAWS.
E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION, AND THE
CONSTITUTIONAL POLICIES ON PUBLIC ACCOUNTABILITY AND TRANSPARENCY OUTWEIGH
THE CLAIM OF EXECUTIVE PRIVILEGE.
IV
CONTRARY TO THIS HONORABLE COURTS DECISION, RESPONDENTS DID NOT COMMIT
GRAVE ABUSE OF DISCRETION IN ISSUING THE ASSAILED CONTEMPT ORDER,
CONSIDERING THAT:
A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE.
B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID DOWN INSENATE
V. ERMITA.

C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE WITH THEIR

INTERNAL RULES.
D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE VI, SECTION 21
OF THE CONSTITUTION REQUIRING THAT ITS RULES OF PROCEDURE BE DULY PUBLISHED,
AND WERE DENIED DUE PROCESS WHEN THE COURT CONSIDERED THE OSGS
INTERVENTION ON THIS ISSUE WITHOUT GIVING RESPONDENTS THE OPPORTUNITY TO
COMMENT.
E. RESPONDENTS ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY OR
PRECIPITATE.
In his Comment, petitioner charges respondent Committees with exaggerating and distorting the Decision of
this Court. He avers that there is nothing in it that prohibits respondent Committees from investigating the NBN
Project or asking him additional questions. According to petitioner, the Court merely applied the rule on
executive privilege to the facts of the case. He further submits the following contentions: first, the assailed
Decision did not reverse the presumption against executive secrecy laid down in Senate v. Ermita; second,
respondent Committees failed to overcome the presumption of executive privilege because it appears that they
could legislate even without the communications elicited by the three (3) questions, and they admitted that they
could dispense with petitioners testimony if certain NEDA documents would be given to them; third, the
requirement of specificity applies only to the privilege for State, military and diplomatic secrets, not to the
necessarily broad and all-encompassing presidential communications privilege; fourth, there is no right to pry
into the Presidents thought processes or exploratory exchanges; fifth, petitioner is not covering up or hiding
anything illegal; sixth, the Court has the power and duty to annul the Senate Rules; seventh, the Senate is not
a continuing body, thus the failure of the present Senate to publish its Rules of Procedure Governing Inquiries
in Aid of Legislation (Rules) has a vitiating effect on them; eighth, the requirement for a witness to be furnished
advance copy of questions comports with due process and the constitutional mandate that the rights of
witnesses be respected; and ninth, neither petitioner nor respondent has the final say on the matter of
executive privilege, only the Court.
For its part, the Office of the Solicitor General maintains that: (1) there is no categorical pronouncement from
the Court that the assailed Orders were issued by respondent Committees pursuant to their oversight function;
hence, there is no reason for them "to make much" of the distinction between Sections 21 and 22, Article VI of
the Constitution; (2) presidential communications enjoy a presumptive privilege against disclosure as earlier
held in Almonte v. Vasquez9 and Chavez v. Public Estates Authority (PEA)10; (3) the communications elicited by
the three (3) questions are covered by executive privilege, because all the elements of the presidential
communications privilege are present; (4) the subpoena ad testificandum issued by respondent Committees to
petitioner is fatally defective under existing law and jurisprudence; (5) the failure of the present Senate to
publish its Rules renders the same void; and (6) respondent Committees arbitrarily issued the contempt order.
Incidentally, respondent Committees objection to the Resolution dated March 18, 2008 (granting the Office of
the Solicitor Generals Motion for Leave to Intervene and to Admit Attached Memorandum) only after the
promulgation of the Decision in this case is foreclosed by its untimeliness.
The core issues that arise from the foregoing respective contentions of the opposing parties are as follows:
(1) whether or not there is a recognized presumptive presidential communications privilege in our legal
system;
(2) whether or not there is factual or legal basis to hold that the communications elicited by the three (3)
questions are covered by executive privilege;
(3) whether or not respondent Committees have shown that the communications elicited by the three
(3) questions are critical to the exercise of their functions; and

(4) whether or not respondent Committees committed grave abuse of discretion in issuing the contempt
order.
We shall discuss these issues seriatim.
I
There Is a Recognized Presumptive
Presidential Communications Privilege
Respondent Committees ardently argue that the Courts declaration that presidential communications are
presumptively privileged reverses the "presumption" laid down in Senate v. Ermita11 that "inclines heavily
against executive secrecy and in favor of disclosure." Respondent Committees then claim that the Court erred
in relying on the doctrine in Nixon.
Respondent Committees argue as if this were the first time the presumption in favor of thepresidential
communications privilege is mentioned and adopted in our legal system. That is far from the truth. The
Court, in the earlier case of Almonte v. Vasquez,12 affirmed that the presidential communications privilege is
fundamental to the operation of government and inextricably rooted in the separation of powers under the
Constitution. Even Senate v. Ermita,13 the case relied upon by respondent Committees, reiterated this concept.
There, the Court enumerated the cases in which the claim of executive privilege was recognized, among
them Almonte v. Chavez, Chavez v. Presidential Commission on Good Government (PCGG),14 and Chavez v.
PEA.15 The Court articulated in these cases that "there are certain types of information which the government
may withhold from the public,16" that there is a "governmental privilege against public disclosure with respect to
state secrets regarding military, diplomatic and other national security matters";17 and that "the right to
information does not extend to matters recognized as privileged information under the separation of
powers, by which the Court meant Presidential conversations, correspondences, and discussions in
closed-door Cabinet meetings."18
Respondent Committees observation that this Courts Decision reversed the "presumption that inclines heavily
against executive secrecy and in favor of disclosure" arises from a piecemeal interpretation of the said
Decision. The Court has repeatedly held that in order to arrive at the true intent and meaning of a decision, no
specific portion thereof should be isolated and resorted to, but the decision must be considered in its entirety.19
Note that the aforesaid presumption is made in the context of the circumstances obtaining in Senate v. Ermita,
which declared void Sections 2(b) and 3 of Executive Order (E.O.) No. 464, Series of 2005. The pertinent
portion of the decision in the said case reads:
From the above discussion on the meaning and scope of executive privilege, both in the United States
and in this jurisprudence, a clear principle emerges. Executive privilege, whether asserted against
Congress, the courts, or the public, is recognized only in relation to certain types of information of a
sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid
or not depending on the ground invoked to justify it and the context in which it is made. Noticeably
absent is any recognition that executive officials are exempt from the duty to disclose information by the
mere fact of being executive officials. Indeed, the extraordinary character of
the exemptions indicates that the presumption inclines heavily against executive secrecy and in
favor of disclosure. (Emphasis and underscoring supplied)
Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the "exemption" being
claimed by the executive officials mentioned in Section 2(b) of E.O. No. 464, solely by virtue of their positions
in the Executive Branch. This means that when an executive official, who is one of those mentioned in the said
Sec. 2(b) of E.O. No. 464, claims to be exempt from disclosure, there can be no presumption of
authorization to invoke executive privilege given by the President to said executive official, such that the
presumption in this situation inclines heavily against executive secrecy and in favor of disclosure.

Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this wise:
Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a
certain information is privileged, such determination is presumed to bear the Presidents authority and
has the effect of prohibiting the official from appearing before Congress, subject only to the express
pronouncement of the President that it is allowing the appearance of such official. These provisions
thus allow the President to authorize claims of privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional nature of the privilege.
Executive privilege, as already discussed, is recognized with respect to information the confidential
nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive
branch, or in those instances where exemption from disclosure is necessary to the discharge of highly
important executive responsibilities. The doctrine of executive privilege is thus premised on the fact that
certain information must, as a matter of necessity, be kept confidential in pursuit of the public interest.
The privilege being, by definition, an exemption from the obligation to disclose information, in this case
to Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing
that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the
President the power to invoke the privilege. She may of course authorize the Executive Secretary to
invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is
"By order of the President", which means that he personally consulted with her. The privilege being an
extraordinary power, it must be wielded only by the highest official in the executive hierarchy. In other
words, the President may not authorize her subordinates to exercise such power. There is even less
reason to uphold such authorization in the instant case where the authorization is not explicit but by
mere silence. Section 3, in relation to Section 2(b), is further invalid on this score.
The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by the
President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case.
In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive privilege
on a specific matter involving an executive agreement between the Philippines and China, which was the
subject of the three (3) questions propounded to petitioner Neri in the course of the Senate Committees
investigation. Thus, the factual setting of this case markedly differs from that passed upon in Senate v. Ermita.
Moreover, contrary to the claim of respondents, the Decision in this present case hews closely to the ruling
in Senate v. Ermita,21 to wit:
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the
promulgation of the 1986 Constitution. Being of American origin, it is best understood in light of how it
has been defined and used in the legal literature of the United States.
Schwart defines executive privilege as "the power of the Government to withhold information from
the public, the courts, and the Congress. Similarly, Rozell defines it as "the right of the President and
high-level executive branch officers to withhold information from Congress, the courts, and ultimately
the public." x x x In this jurisdiction, the doctrine of executive privilege was recognized by this Court in
Almonte v. Vasquez. Almonte used the term in reference to the same privilege subject of Nixon. It
quoted the following portion of the Nixon decision which explains the basis for the privilege:
"The expectation of a President to the confidentiality of his conversations and correspondences,
like the claim of confidentiality of judicial deliberations, for example, he has all the values to which
we accord deference for the privacy of all citizens and, added to those values, is the necessity for
protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential

decision-making. A President and those who assist him must be free to explore alternatives in the
process of shaping policies and making decisions and to do so in a way many would be unwilling to
express except privately. These are the considerations justifying a presumptive privilege for
Presidential communications. The privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the Constitution x x x " (Emphasis and
italics supplied)
Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential communication,"
which was recognized early on in Almonte v. Vasquez. To construe the passage inSenate v. Ermita adverted to
in the Motion for Reconsideration of respondent Committees, referring to the non-existence of a "presumptive
authorization" of an executive official, to mean that the "presumption" in favor of executive privilege "inclines
heavily against executive secrecy and in favor of disclosure" is to distort the ruling in the Senate v. Ermita and
make the same engage in self-contradiction.
Senate v. Ermita22 expounds on the constitutional underpinning of the relationship between the Executive
Department and the Legislative Department to explain why there should be no implied authorization or
presumptive authorization to invoke executive privilege by the Presidents subordinate officials, as follows:
When Congress exercises its power of inquiry, the only way for department heads to exempt
themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that
they are department heads. Only one executive official may be exempted from this power - the
President on whom executive power is vested, hence, beyond the reach of Congress except through
the power of impeachment. It is based on he being the highest official of the executive branch, and the
due respect accorded to a co-equal branch of governments which is sanctioned by a long-standing
custom. (Underscoring supplied)
Thus, if what is involved is the presumptive privilege of presidential communications when invoked by the
President on a matter clearly within the domain of the Executive, the said presumption dictates that the same
be recognized and be given preference or priority, in the absence of proof of a compelling or critical need for
disclosure by the one assailing such presumption. Any construction to the contrary will render meaningless the
presumption accorded by settled jurisprudence in favor of executive privilege. In fact, Senate v.
Ermita reiterates jurisprudence citing "the considerations justifying a presumptive privilege for Presidential
communications."23
II
There Are Factual and Legal Bases to
Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege
Respondent Committees claim that the communications elicited by the three (3) questions are not covered by
executive privilege because the elements of the presidential communications privilegeare not present.
A. The power to enter into an executive agreement is a "quintessential and non-delegable presidential
power."
First, respondent Committees contend that the power to secure a foreign loan does not relate to a
"quintessential and non-delegable presidential power," because the Constitution does not vest it in the
President alone, but also in the Monetary Board which is required to give its prior concurrence and to report to
Congress.
This argument is unpersuasive.
The fact that a power is subject to the concurrence of another entity does not make such power less executive.
"Quintessential" is defined as the most perfect embodiment of something, the concentrated essence of

substance.24 On the other hand, "non-delegable" means that a power or duty cannot be delegated to another
or, even if delegated, the responsibility remains with the obligor.25 The power to enter into an executive
agreement is in essence an executive power. This authority of the President to enter into executive
agreements without the concurrence of the Legislature has traditionally been recognized in Philippine
jurisprudence.26 Now, the fact that the President has to secure the prior concurrence of the Monetary Board,
which shall submit to Congress a complete report of its decision before contracting or guaranteeing foreign
loans, does not diminish the executive nature of the power.
The inviolate doctrine of separation of powers among the legislative, executive and judicial branches of
government by no means prescribes absolute autonomy in the discharge by each branch of that part of the
governmental power assigned to it by the sovereign people. There is the corollary doctrine of checks and
balances, which has been carefully calibrated by the Constitution to temper the official acts of each of these
three branches. Thus, by analogy, the fact that certain legislative acts require action from the President for their
validity does not render such acts less legislative in nature. A good example is the power to pass a law. Article
VI, Section 27 of the Constitution mandates that every bill passed by Congress shall, before it becomes a law,
be presented to the President who shall approve or veto the same. The fact that the approval or vetoing of the
bill is lodged with the President does not render the power to pass law executive in nature. This is because the
power to pass law is generally a quintessential and non-delegable power of the Legislature. In the same vein,
the executive power to enter or not to enter into a contract to secure foreign loans does not become less
executive in nature because of conditions laid down in the Constitution. The final decision in the exercise of the
said executive power is still lodged in the Office of the President.
B. The "doctrine of operational proximity" was laid down precisely to limit the scope of the presidential
communications privilege but, in any case, it is not conclusive.
Second, respondent Committees also seek reconsideration of the application of the "doctrine of operational
proximity" for the reason that "it maybe misconstrued to expand the scope of the presidential communications
privilege to communications between those who are operationally proximate to the President but who may
have "no direct communications with her."
It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed Case27precisely
to limit the scope of the presidential communications privilege. The U.S. court was aware of the dangers that a
limitless extension of the privilege risks and, therefore, carefully cabined its reach by explicitly confining it to
White House staff, and not to staffs of the agencies, and then only to White House staff that has "operational
proximity" to direct presidential decision-making, thus:
We are aware that such an extension, unless carefully circumscribed to accomplish the purposes of the
privilege, could pose a significant risk of expanding to a large swath of the executive branch a privilege
that is bottomed on a recognition of the unique role of the President. In order to limit this risk, the
presidential communications privilege should be construed as narrowly as is consistent with ensuring
that the confidentiality of the Presidents decision-making process is adequately protected. Not every
person who plays a role in the development of presidential advice, no matter how remote and
removed from the President, can qualify for the privilege. In particular, the privilege should not
extend to staff outside the White House in executive branch agencies. Instead, the privilege
should apply only to communications authored or solicited and received by those members of an
immediate White House advisors staff who have broad and significant responsibility for investigation
and formulating the advice to be given the President on the particular matter to which the
communications relate. Only communications at that level are close enough to the President to be
revelatory of his deliberations or to pose a risk to the candor of his advisers. See AAPS, 997
F.2d at 910 (it is "operational proximity" to the President that matters in determining whether
"[t]he Presidents confidentiality interests" is implicated).(Emphasis supplied)
In the case at bar, the danger of expanding the privilege "to a large swath of the executive branch" (a fear
apparently entertained by respondents) is absent because the official involved here is a member of the
Cabinet, thus, properly within the term "advisor" of the President; in fact, her alter ego and a member of her
official family. Nevertheless, in circumstances in which the official involved is far too remote, this Court also

mentioned in the Decision the organizational test laid down in Judicial Watch, Inc. v. Department of
Justice.28 This goes to show that the operational proximity test used in the Decision is not considered
conclusive in every case. In determining which test to use, the main consideration is to limit the availability of
executive privilege only to officials who stand proximate to the President, not only by reason of their function,
but also by reason of their positions in the Executives organizational structure. Thus, respondent Committees
fear that the scope of the privilege would be unnecessarily expanded with the use of the operational proximity
test is unfounded.
C. The Presidents claim of executive privilege is not merely based on a generalized interest; and in
balancing respondent Committees and the Presidents clashing interests, the Court did not disregard
the 1987 Constitutional provisions on government transparency, accountability and disclosure of
information.
Third, respondent Committees claim that the Court erred in upholding the Presidents invocation, through the
Executive Secretary, of executive privilege because (a) between respondent Committees specific and
demonstrated need and the Presidents generalized interest in confidentiality, there is a need to strike the
balance in favor of the former; and (b) in the balancing of interest, the Court disregarded the provisions of the
1987 Philippine Constitution on government transparency, accountability and disclosure of information,
specifically, Article III, Section 7;29 Article II, Sections 2430 and 28;31 Article XI, Section 1;32 Article XVI, Section
10;33 Article VII, Section 20;34 and Article XII, Sections 9,35 21,36 and 22.37
It must be stressed that the Presidents claim of executive privilege is not merely founded on her generalized
interest in confidentiality. The Letter dated November 15, 2007 of Executive Secretary Ermita
specified presidential communications privilege in relation to diplomatic and economic relations with
another sovereign nation as the bases for the claim. Thus, the Letter stated:
The context in which executive privilege is being invoked is that the information sought to be
disclosed might impair our diplomatic as well as economic relations with the Peoples Republic
of China. Given the confidential nature in which this information were conveyed to the President, he
cannot provide the Committee any further details of these conversations, without disclosing the very
thing the privilege is designed to protect. (emphasis supplied)
Even in Senate v. Ermita, it was held that Congress must not require the Executive to state the reasons for the
claim with such particularity as to compel disclosure of the information which the privilege is meant to protect.
This is a matter of respect for a coordinate and co-equal department.
It is easy to discern the danger that goes with the disclosure of the Presidents communication with her advisor.
The NBN Project involves a foreign country as a party to the agreement. It was actually a product of the
meeting of minds between officials of the Philippines and China. Whatever the President says about the
agreement - particularly while official negotiations are ongoing - are matters which China will surely view with
particular interest. There is danger in such kind of exposure. It could adversely affect our diplomatic as well as
economic relations with the Peoples Republic of China. We reiterate the importance of secrecy in matters
involving foreign negotiations as stated in United States v. Curtiss-Wright Export Corp., 38 thus:
The nature of foreign negotiations requires caution, and their success must often depend on secrecy,
and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual
concessions which may have been proposed or contemplated would be extremely impolitic, for this
might have a pernicious influence on future negotiations or produce immediate inconveniences,
perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy
was one cogent reason for vesting the power of making treaties in the President, with the advice and
consent of the Senate, the principle on which the body was formed confining it to a small number of
members. To admit, then, a right in the House of Representatives to demand and to have as a matter of
course all the papers respecting a negotiation with a foreign power would be to establish a dangerous
precedent.

US jurisprudence clearly guards against the dangers of allowing Congress access to all papers relating to a
negotiation with a foreign power. In this jurisdiction, the recent case of Akbayan Citizens Action Party, et al. v.
Thomas G. Aquino, et al.39 upheld the privileged character of diplomatic negotiations. In Akbayan, the Court
stated:
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In
discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that
"information on inter-government exchanges prior to the conclusion of treaties and executive
agreements may be subject to reasonable safeguards for the sake of national interest." Even earlier,
the same privilege was upheld in Peoples Movement for Press Freedom (PMPF) v. Manglapus wherein
the Court discussed the reasons for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from the Presidents
representatives on the state of the then on-going negotiations of the RP-US Military Bases Agreement.
The Court denied the petition, stressing that "secrecy of negotiations with foreign countries is not
violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of
access to information." The Resolution went on to state, thus:
The nature of diplomacy requires centralization of authority and expedition of decision
which are inherent in executive action. Another essential characteristic of diplomacy is
its confidential nature. Although much has been said about "open" and "secret" diplomacy,
with disparagement of the latter, Secretaries of State Hughes and Stimson have clearly
analyzed and justified the practice. In the words of Mr. Stimson:
"A complicated negotiation cannot be carried through without many, many
private talks and discussion, man to man; many tentative suggestions and
proposals. Delegates from other countries come and tell you in confidence of their
troubles at home and of their differences with other countries and with other
delegates; they tell you of what they would do under certain circumstances and
would not do under other circumstances If these reports should become
public who would ever trust American Delegations in another
conference? (United States Department of State, Press Releases, June 7, 1930, pp.
282-284)
xxxx
There is frequent criticism of the secrecy in which negotiation with foreign powers on
nearly all subjects is concerned. This, it is claimed, is incompatible with the substance of
democracy. As expressed by one writer, "It can be said that there is no more rigid system of
silence anywhere in the world." (E.J. Young, Looking Behind the Censorship, J. B. Lipincott Co.,
1938) President Wilson in starting his efforts for the conclusion of the World War declared that
we must have "open covenants, openly arrived at." He quickly abandoned his thought.
No one who has studied the question believes that such a method of publicity is possible.In the
moment that negotiations are started, pressure groups attempt to "muscle in." An illtimed speech by one of the parties or a frank declaration of the concession which are
exacted or offered on both sides would quickly lead to a widespread propaganda to
block the negotiations. After a treaty has been drafted and its terms are fully published,
there is ample opportunity for discussion before it is approved. (The New American
Government and Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and underscoring
supplied)

Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp. that
the President is the sole organ of the nation in its negotiations with foreign countries,viz:
"x x x In this vast external realm, with its important, complicated, delicate and manifold
problems, the President alone has the power to speak or listen as a representative of the nation.
He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the
field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As
Marshall said in his great arguments of March 7, 1800, in the House of Representatives, "The
President is the sole organ of the nation in its external relations, and its sole
representative with foreign nations." Annals, 6th Cong., col. 613 (Emphasis supplied;
underscoring in the original)
Considering that the information sought through the three (3) questions subject of this Petition involves the
Presidents dealings with a foreign nation, with more reason, this Court is wary of approving the view that
Congress may peremptorily inquire into not only official, documented acts of the President but even her
confidential and informal discussions with her close advisors on the pretext that said questions serve some
vague legislative need. Regardless of who is in office, this Court can easily foresee unwanted consequences of
subjecting a Chief Executive to unrestricted congressional inquiries done with increased frequency and great
publicity. No Executive can effectively discharge constitutional functions in the face of intense and unchecked
legislative incursion into the core of the Presidents decision-making process, which inevitably would involve
her conversations with a member of her Cabinet.
With respect to respondent Committees invocation of constitutional prescriptions regarding the right of the
people to information and public accountability and transparency, the Court finds nothing in these arguments to
support respondent Committees case.
There is no debate as to the importance of the constitutional right of the people to information and the
constitutional policies on public accountability and transparency. These are the twin postulates vital to the
effective functioning of a democratic government. The citizenry can become prey to the whims and caprices of
those to whom the power has been delegated if they are denied access to information. And the policies on
public accountability and democratic government would certainly be mere empty words if access to such
information of public concern is denied.
In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific questions, did
not in any way curb the publics right to information or diminish the importance of public accountability and
transparency.
This Court did not rule that the Senate has no power to investigate the NBN Project in aid of legislation. There
is nothing in the assailed Decision that prohibits respondent Committees from inquiring into the NBN Project.
They could continue the investigation and even call petitioner Neri to testify again. He himself has repeatedly
expressed his willingness to do so. Our Decision merely excludes from the scope of respondents investigation
the three (3) questions that elicit answers covered by executive privilege and rules that petitioner cannot be
compelled to appear before respondents to answer the said questions. We have discussed the reasons why
these answers are covered by executive privilege. That there is a recognized public interest in the
confidentiality of such information is a recognized principle in other democratic States. To put it simply, the right
to information is not an absolute right.
Indeed, the constitutional provisions cited by respondent Committees do not espouse an absolute right to
information. By their wording, the intention of the Framers to subject such right to the regulation of the law is
unmistakable. The highlighted portions of the following provisions show the obvious limitations on the right to
information, thus:
Article III, Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to official records, and
to documents, and papers pertaining to official acts, transactions, or decisions, as well as to

government research data used as basis for policy development, shall be afforded the citizen, subject
to such limitations as may be provided by law.
Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public interest.(Emphasis
supplied)
In Chavez v. Presidential Commission on Good Government,40 it was stated that there are no specific laws
prescribing the exact limitations within which the right may be exercised or the correlative state duty may be
obliged. Nonetheless, it enumerated the recognized restrictions to such rights, among them: (1) national
security matters, (2) trade secrets and banking transactions, (3) criminal matters, and (4) other confidential
information. National security matters include state secrets regarding military and diplomatic matters, as well
as information on inter-government exchanges prior to the conclusion of treaties and executive agreements. It
was further held that even where there is no need to protect such state secrets, they must be
"examined in strict confidence and given scrupulous protection."
Incidentally, the right primarily involved here is the right of respondent Committees to obtain information
allegedly in aid of legislation, not the peoples right to public information. This is the reason why we stressed in
the assailed Decision the distinction between these two rights. As laid down in Senate v. Ermita, "the demand
of a citizen for the production of documents pursuant to his right to information does not have the same
obligatory force as a subpoena duces tecum issued by Congress" and "neither does the right to information
grant a citizen the power to exact testimony from government officials." As pointed out, these rights belong to
Congress, not to the individual citizen. It is worth mentioning at this juncture that the parties here are
respondent Committees and petitioner Neri and that there was no prior request for information on the part of
any individual citizen. This Court will not be swayed by attempts to blur the distinctions between the
Legislature's right to information in a legitimate legislative inquiry and the public's right to information.
For clarity, it must be emphasized that the assailed Decision did not enjoin respondent Committees
from inquiring into the NBN Project. All that is expected from them is to respect matters that are
covered by executive privilege.
III.
Respondent Committees Failed to Show That
the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions
In their Motion for Reconsideration, respondent Committees devote an unusually lengthy discussion on the
purported legislative nature of their entire inquiry, as opposed to an oversight inquiry.
At the outset, it must be clarified that the Decision did not pass upon the nature of respondent Committees
inquiry into the NBN Project. To reiterate, this Court recognizes respondent Committees power to investigate
the NBN Project in aid of legislation. However, this Court cannot uphold the view that when a constitutionally
guaranteed privilege or right is validly invoked by a witness in the course of a legislative investigation, the
legislative purpose of respondent Committees questions can be sufficiently supported by the expedient of
mentioning statutes and/or pending bills to which their inquiry as a whole may have relevance. The
jurisprudential test laid down by this Court in past decisions on executive privilege is that the presumption of
privilege can only be overturned by a showing of compelling need for disclosure of the information covered
by executive privilege.
In the Decision, the majority held that "there is no adequate showing of a compelling need that would justify the
limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating
authority." In the Motion for Reconsideration, respondent Committees argue that the information elicited by the
three (3) questions are necessary in the discharge of their legislative functions, among them, (a) to consider
the three (3) pending Senate Bills, and (b) to curb graft and corruption.

We remain unpersuaded by respondents assertions.

In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against other interests and
it is necessary to resolve the competing interests in a manner that would preserve the essential functions of
each branch. There, the Court weighed between presidential privilege and the legitimate claims of the judicial
process. In giving more weight to the latter, the Court ruled that the President's generalized assertion of
privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.
The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of the primary
constitutional duty of the Judicial Branch to do justice in criminal prosecutions. The said Court further
ratiocinated, through its ruling extensively quoted in the Honorable Chief Justice Puno's dissenting opinion, as
follows:
"... this presumptive privilege must be considered in light of our historic commitment to the rule of law.
This is nowhere more profoundly manifest than in our view that 'the twofold aim (of criminal justice) is
that guild shall not escape or innocence suffer.' Berger v. United States, 295 U.S., at 88, 55 S.Ct., at
633. We have elected to employ an adversary system of criminal justice in which the parties contest all
issues before a court of law. The need to develop all relevant facts in the adversary system is both
fundamental and comprehensive. The ends of criminal justice would be defeated if judgments
were to be founded on a partial or speculative presentation of the facts. The very integrity of the
judicial system and public confidence in the system depend on full disclosure of all the facts,
within the framework of the rules of evidence. To ensure that justice is done, it is imperative to
the function of courts that compulsory process be available for the production of evidence needed
either by the prosecution or by the defense.
xxx xxx xxx
The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The
Sixth Amendment explicitly confers upon every defendant in a criminal trial theright 'to be confronted
with the witness against him' and 'to have compulsory process for obtaining witnesses in his
favor.' Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty
without due process of law. It is the manifest duty of the courts to vindicate those guarantees,
and to accomplish that it is essential that all relevant and admissible evidence be produced.
In this case we must weigh the importance of the general privilege of confidentiality of
Presidential communications in performance of the President's responsibilities against the
inroads of such a privilege on the fair administration of criminal justice. (emphasis supplied)
xxx xxx xxx
...the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial
would cut deeply into the guarantee of due process of law and gravely impair the basic function
of the courts. A President's acknowledged need for confidentiality in the communications of his
office is general in nature, whereas theconstitutional need for production of relevant evidence in a
criminal proceeding is specific and central to the fair adjudication of a particular criminal case
in the administration of justice. Without access to specific facts a criminal prosecution may betotally
frustrated. The President's broad interest in confidentiality of communication willnot be
vitiated by disclosure of a limited number of conversations preliminarily shown to have some
bearing on the pending criminal cases.
We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in
a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the
fundamental demands of due process of law in the fair administration of criminal justice. The
generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a
pending criminal trial. (emphasis supplied)

In the case at bar, we are not confronted with a courts need for facts in order to adjudge liability in a criminal
case but rather with the Senates need for information in relation to its legislative functions. This leads us to
consider once again just how critical is the subject information in the discharge of respondent Committees
functions. The burden to show this is on the respondent Committees, since they seek to intrude into the sphere
of competence of the President in order to gather information which, according to said respondents, would
"aid" them in crafting legislation.
Senate Select Committee on Presidential Campaign Activities v. Nixon41 expounded on the nature of a
legislative inquiry in aid of legislation in this wise:
The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether
the subpoenaed materials are critical to the performance of its legislative functions. There is a clear
difference between Congress' legislative tasks and the responsibility of a grand jury, or any institution
engaged in like functions. While fact-finding by a legislative committee is undeniably a part of its
task, legislative judgments normally depend more on the predicted consequences of proposed
legislative actions and their political acceptability, than on precise reconstruction of past
events; Congress frequently legislates on the basis of conflicting information provided in its hearings. In
contrast, the responsibility of the grand jury turns entirely on its ability to determine whether there is
probable cause to believe that certain named individuals did or did not commit specific crimes. If, for
example, as in Nixon v. Sirica, one of those crimes is perjury concerning the content of certain
conversations, the grand jury's need for the most precise evidence, the exact text of oral statements
recorded in their original form, is undeniable. We see no comparable need in the legislative
process, at least not in the circumstances of this case. Indeed, whatever force there might once
have been in the Committee's argument that the subpoenaed materials are necessary to its legislative
judgments has been substantially undermined by subsequent events. (Emphasis supplied)
Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling or demonstratively
critical and specific need for facts which is so essential to the judicial power to adjudicate actual controversies.
Also, the bare standard of "pertinency" set in Arnault cannot be lightly applied to the instant case, which
unlike Arnault involves a conflict between two (2) separate, co-equal and coordinate Branches of the
Government.
Whatever test we may apply, the starting point in resolving the conflicting claims between the Executive and
the Legislative Branches is the recognized existence of the presumptive presidential communications privilege.
This is conceded even in the Dissenting Opinion of the Honorable Chief Justice Puno, which states:
A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified presumption
in favor of the Presidential communications privilege. As shown in the previous discussion, U.S. v.
Nixon, as well as the other related Nixon cases Sirica and Senate Select Committee on Presidential
Campaign Activities, et al., v. Nixon in the D.C. Court of Appeals, as well as subsequent cases all
recognize that there is a presumptive privilege in favor of Presidential communications. The Almonte
case quoted U.S. v. Nixon and recognized a presumption in favor of confidentiality of Presidential
communications.
The presumption in favor of Presidential communications puts the burden on the respondent Senate
Committees to overturn the presumption by demonstrating their specific need for the information to be elicited
by the answers to the three (3) questions subject of this case, to enable them to craft legislation. Here, there is
simply a generalized assertion that the information is pertinent to the exercise of the power to legislate and a
broad and non-specific reference to pending Senate bills. It is not clear what matters relating to these bills
could not be determined without the said information sought by the three (3) questions. As correctly pointed out
by the Honorable Justice Dante O. Tinga in his Separate Concurring Opinion:
If respondents are operating under the premise that the president and/or her executive
officials have committed wrongdoings that need to be corrected or prevented from recurring by
remedial legislation, the answer to those three questions will not necessarily bolster or inhibit

respondents from proceeding with such legislation. They could easily presume the worst of the
president in enacting such legislation.
For sure, a factual basis for situations covered by bills is not critically needed before legislatives bodies can
come up with relevant legislation unlike in the adjudication of cases by courts of law. Interestingly, during the
Oral Argument before this Court, the counsel for respondent Committees impliedly admitted that the Senate
could still come up with legislations even without petitioner answering the three (3) questions. In other words,
the information being elicited is not so critical after all. Thus:
CHIEF JUSTICE PUNO
So can you tell the Court how critical are these questions to the lawmaking function of the
Senate. For instance, question Number 1 whether the President followed up the NBN project.
According to the other counsel this question has already been asked, is that correct?
ATTY. AGABIN
Well, the question has been asked but it was not answered, Your Honor.
CHIEF JUSTICE PUNO
Yes. But my question is how critical is this to the lawmaking function of the Senate?
ATTY. AGABIN
I believe it is critical, Your Honor.
CHIEF JUSTICE PUNO
Why?
ATTY. AGABIN
For instance, with respect to the proposed Bill of Senator Miriam Santiago, she would like to
indorse a Bill to include Executive Agreements had been used as a device to the circumventing
the Procurement Law.
CHIEF JUSTICE PUNO
But the question is just following it up.
ATTY. AGABIN
I believe that may be the initial question, Your Honor, because if we look at this problem in its
factual setting as counsel for petitioner has observed, there are intimations of a bribery scandal
involving high government officials.
CHIEF JUSTICE PUNO
Again, about the second question, were you dictated to prioritize this ZTE, is that critical to the
lawmaking function of the Senate? Will it result to the failure of the Senate to cobble a Bill
without this question?
ATTY. AGABIN

I think it is critical to lay the factual foundations for a proposed amendment to the Procurement
Law, Your Honor, because the petitioner had already testified that he was offered a P200 Million
bribe, so if he was offered a P200 Million bribe it is possible that other government officials who
had something to do with the approval of the contract would be offered the same amount of
bribes.
CHIEF JUSTICE PUNO
Again, that is speculative.
ATTY. AGABIN
That is why they want to continue with the investigation, Your Honor.
CHIEF JUSTICE PUNO
How about the third question, whether the President said to go ahead and approve the project
after being told about the alleged bribe. How critical is that to the lawmaking function of the
Senate? And the question is may they craft a Bill a remedial law without forcing petitioner Neri to
answer this question?
ATTY. AGABIN
Well, they can craft it, Your Honor, based on mere speculation. And sound legislation requires
that a proposed Bill should have some basis in fact.42
The failure of the counsel for respondent Committees to pinpoint the specific need for the information sought or
how the withholding of the information sought will hinder the accomplishment of their legislative purpose is very
evident in the above oral exchanges. Due to the failure of the respondent Committees to successfully
discharge this burden, the presumption in favor of confidentiality of presidential communication stands. The
implication of the said presumption, like any other, is to dispense with the burden of proof as to whether the
disclosure will significantly impair the Presidents performance of her function. Needless to state this is
assumed, by virtue of the presumption.
Anent respondent Committees bewailing that they would have to "speculate" regarding the questions covered
by the privilege, this does not evince a compelling need for the information sought. Indeed,Senate Select
Committee on Presidential Campaign Activities v. Nixon43 held that while fact-finding by a legislative committee
is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of
proposed legislative actions and their political acceptability than on a precise reconstruction of past events. It
added that, normally, Congress legislates on the basis of conflicting information provided in its hearings. We
cannot subscribe to the respondent Committees self-defeating proposition that without the answers to the
three (3) questions objected to as privileged, the distinguished members of the respondent Committees cannot
intelligently craft legislation.
Anent the function to curb graft and corruption, it must be stressed that respondent Committees need for
information in the exercise of this function is not as compelling as in instances when the purpose of the inquiry
is legislative in nature. This is because curbing graft and corruption is merely an oversight function of
Congress.44 And if this is the primary objective of respondent Committees in asking the three (3) questions
covered by privilege, it may even contradict their claim that their purpose is legislative in nature and not
oversight. In any event, whether or not investigating graft and corruption is a legislative or oversight function of
Congress, respondent Committees investigation cannot transgress bounds set by the Constitution.
In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:

The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "the political question doctrine neither interposes an
obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries
has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution,
although said provision by no means does away with the applicability of the principle in appropriate
cases.46 (Emphasis supplied)
There, the Court further ratiocinated that "the contemplated inquiry by respondent Committee is not really in
aid of legislation because it is not related to a purpose within the jurisdiction of Congress, since the aim
of the investigation is to find out whether or not the relatives of the President or Mr. Ricardo Lopa had
violated Section 5 of R.A. No. 3019, the Anti-Graft and Corrupt Practices Act, a matter that appears
more within the province of the courts rather than of the Legislature."47 (Emphasis and underscoring
supplied)
The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the Office of the
President.48 While it may be a worthy endeavor to investigate the potential culpability of high government
officials, including the President, in a given government transaction, it is simply not a task for the Senate to
perform. The role of the Legislature is to make laws, not to determine anyones guilt of a crime or wrongdoing.
Our Constitution has not bestowed upon the Legislature the latter role. Just as the Judiciary cannot legislate,
neither can the Legislature adjudicate or prosecute.
Respondent Committees claim that they are conducting an inquiry in aid of legislation and a "search for truth,"
which in respondent Committees view appears to be equated with the search for persons responsible for
"anomalies" in government contracts.
No matter how noble the intentions of respondent Committees are, they cannot assume the power reposed
upon our prosecutorial bodies and courts. The determination of who is/are liable for a crime or illegal activity,
the investigation of the role played by each official, the determination of who should be haled to court for
prosecution and the task of coming up with conclusions and finding of facts regarding anomalies, especially the
determination of criminal guilt, are not functions of the Senate. Congress is neither a law enforcement nor a
trial agency. Moreover, it bears stressing that no inquiry is an end in itself; it must be related to, and in
furtherance of, a legitimate task of the Congress, i.e. legislation. Investigations conducted solely to gather
incriminatory evidence and "punish" those investigated are indefensible. There is no Congressional power to
expose for the sake of exposure.49In this regard, the pronouncement in Barenblatt v. United States50 is
instructive, thus:
Broad as it is, the power is not, however, without limitations. Since Congress may only investigate
into the areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are
within the exclusive province of one of the other branches of the government. Lacking the judicial power
given to the Judiciary, it cannot inquire into matters that are exclusively the concern of the Judiciary.
Neither can it supplant the Executive in what exclusively belongs to the Executive. (Emphasis
supplied.)
At this juncture, it is important to stress that complaints relating to the NBN Project have already been filed
against President Arroyo and other personalities before the Office of the Ombudsman. Under our Constitution,
it is the Ombudsman who has the duty "to investigate any act or omission of any public official,
employee, office or agency when such act or omission appears to be illegal, unjust, improper, or
inefficient."51 The Office of the Ombudsman is the body properly equipped by the Constitution and our laws to
preliminarily determine whether or not the allegations of anomaly are true and who are liable therefor. The
same holds true for our courts upon which the Constitution reposes the duty to determine criminal guilt with
finality. Indeed, the rules of procedure in the Office of the Ombudsman and the courts are welldefined and ensure that the constitutionally guaranteed rights of all persons, parties and witnesses
alike, are protected and safeguarded.
Should respondent Committees uncover information related to a possible crime in the course of their
investigation, they have the constitutional duty to refer the matter to the appropriate agency or branch of

government. Thus, the Legislatures need for information in an investigation of graft and corruption cannot be
deemed compelling enough to pierce the confidentiality of information validly covered by executive privilege.
As discussed above, the Legislature can still legislate on graft and corruption even without the information
covered by the three (3) questions subject of the petition.
Corollarily, respondent Committees justify their rejection of petitioners claim of executive privilege on the
ground that there is no privilege when the information sought might involve a crime or illegal activity, despite
the absence of an administrative or judicial determination to that effect. Significantly, however, in Nixon v.
Sirica,52 the showing required to overcome the presumption favoring confidentiality turned, not on the nature
of the presidential conduct that the subpoenaed material might reveal, but, instead, on the nature and
appropriateness of the function in the performance of which the material was sought, and the degree
to which the material was necessary to its fulfillment.
Respondent Committees assert that Senate Select Committee on Presidential Campaign Activities v.
Nixon does not apply to the case at bar because, unlike in the said case, no impeachment proceeding has
been initiated at present. The Court is not persuaded. While it is true that no impeachment proceeding has
been initiated, however, complaints relating to the NBN Project have already been filed against President
Arroyo and other personalities before the Office of the Ombudsman. As the Court has said earlier, the
prosecutorial and judicial arms of government are the bodies equipped and mandated by the Constitution and
our laws to determine whether or not the allegations of anomaly in the NBN Project are true and, if so, who
should be prosecuted and penalized for criminal conduct.
Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of evidence essential
to arrive at accurate factual findings to which to apply the law. Hence, Section 10 of the Senate Rules of
Procedure Governing Inquiries in Aid of Legislation provides that "technical rules of evidence applicable to
judicial proceedings which do not affect substantive rights need not be observed by the Committee." Court
rules which prohibit leading, hypothetical, or repetitive questions or questions calling for a hearsay answer, to
name a few, do not apply to a legislative inquiry. Every person, from the highest public official to the most
ordinary citizen, has the right to be presumed innocent until proven guilty in proper proceedings by a
competent court or body.
IV
Respondent Committees Committed Grave
Abuse of Discretion in Issuing the Contempt Order
Respondent Committees insist that they did not commit grave abuse of discretion in issuing the contempt order
because (1) there is no legitimate claim of executive privilege; (2) they did not violate the requirements laid
down in Senate v. Ermita; (3) they issued the contempt order in accordance with their internal Rules; (4) they
did not violate the requirement under Article VI, Section 21 of the Constitution requiring the publication of
their Rules; and (5) their issuance of the contempt order is not arbitrary or precipitate.
We reaffirm our earlier ruling.
The legitimacy of the claim of executive privilege having been fully discussed in the preceding pages, we see
no reason to discuss it once again.
Respondent Committees second argument rests on the view that the ruling in Senate v. Ermita, requiring
invitations or subpoenas to contain the "possible needed statute which prompted the need for the inquiry"
along with the "usual indication of the subject of inquiry and the questions relative to and in furtherance
thereof" is not provided for by the Constitution and is merely an obiter dictum.
On the contrary, the Court sees the rationale and necessity of compliance with these requirements.

An unconstrained congressional investigative power, like an unchecked Executive, generates its own abuses.
Consequently, claims that the investigative power of Congress has been abused (or has the potential for
abuse) have been raised many times.53 Constant exposure to congressional subpoena takes its toll on the
ability of the Executive to function effectively. The requirements set forth in Senate v. Ermita are modest
mechanisms that would not unduly limit Congress power. The legislative inquiry must be confined to
permissible areas and thus, prevent the "roving commissions" referred to in the U.S. case, Kilbourn v.
Thompson.54 Likewise, witnesses have their constitutional right to due process. They should be adequately
informed what matters are to be covered by the inquiry. It will also allow them to prepare the pertinent
information and documents. To our mind, these requirements concede too little political costs or burdens on the
part of Congress when viewed vis--vis the immensity of its power of inquiry. The logic of these requirements is
well articulated in the study conducted by William P. Marshall,55 to wit:
A second concern that might be addressed is that the current system allows committees to continually
investigate the Executive without constraint. One process solution addressing this concern is to
require each investigation be tied to a clearly stated purpose. At present, the charters of some
congressional committees are so broad that virtually any matter involving the Executive can be
construed to fall within their province. Accordingly, investigations can proceed without articulation of
specific need or purpose. A requirement for a more precise charge in order to begin an inquiry should
immediately work to limit the initial scope of the investigation and should also serve to contain the
investigation once it is instituted.Additionally, to the extent clear statements of rules cause
legislatures to pause and seriously consider the constitutional implications of proposed
courses of action in other areas, they would serve that goal in the context of congressional
investigations as well.
The key to this reform is in its details. A system that allows a standing committee to simply
articulate its reasons to investigate pro forma does no more than imposes minimal drafting
burdens. Rather, the system must be designed in a manner that imposes actual burdens on the
committee to articulate its need for investigation and allows for meaningful debate about the
merits of proceeding with the investigation.(Emphasis supplied)
Clearly, petitioners request to be furnished an advance copy of questions is a reasonable demand that should
have been granted by respondent Committees.
Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific reference to any
pending Senate bill. It did not also inform petitioner of the questions to be asked. As it were, the subpoena
merely commanded him to "testify on what he knows relative to the subject matter under inquiry."
Anent the third argument, respondent Committees contend that their Rules of Procedure Governing Inquiries
in Aid of Legislation (the "Rules") are beyond the reach of this Court. While it is true that this Court must refrain
from reviewing the internal processes of Congress, as a co-equal branch of government, however, when a
constitutional requirement exists, the Court has the duty to look into Congress compliance therewith. We
cannot turn a blind eye to possible violations of the Constitution simply out of courtesy. In this regard, the
pronouncement in Arroyo v. De Venecia56 is enlightening, thus:
"Cases both here and abroad, in varying forms of expression, all deny to the courts the power to inquire
into allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the
absence of showing that there was a violation of a constitutional provision or the rights of private
individuals.
United States v. Ballin, Joseph & Co., the rule was stated thus: The Constitution empowers each
House to determine its rules of proceedings. It may not by its rules ignore constitutional restraints
or violate fundamental rights, and there should be a reasonable relation between the mode or
method of proceeding established by the rule and the result which is sought to be attained."

In the present case, the Courts exercise of its power of judicial review is warranted because there appears to
be a clear abuse of the power of contempt on the part of respondent Committees. Section 18 of the Rules
provides that:
"The Committee, by a vote of majority of all its members, may punish for contempt any witness before
it who disobey any order of the Committee or refuses to be sworn or to testify or to answer proper
questions by the Committee or any of its members." (Emphasis supplied)
In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt order because
during the deliberation of the three (3) respondent Committees, only seven (7) Senators were present. This
number could hardly fulfill the majority requirement needed by respondentCommittee on Accountability of
Public Officers and Investigations which has a membership of seventeen (17) Senators and
respondent Committee on National Defense and Security which has a membership of eighteen (18) Senators.
With respect to respondent Committee on Trade and Commerce which has a membership of nine (9) Senators,
only three (3) members were present.57These facts prompted us to quote in the Decision the exchanges
between Senators Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the former raised the issue of lack
of the required majority to deliberate and vote on the contempt order.
When asked about such voting during the March 4, 2008 hearing before this Court, Senator Francis Pangilinan
stated that any defect in the committee voting had been cured because two-thirds of the Senators effectively
signed for the Senate in plenary session.58
Obviously the deliberation of the respondent Committees that led to the issuance of the contempt order is
flawed. Instead of being submitted to a full debate by all the members of the respondent Committees, the
contempt order was prepared and thereafter presented to the other members for signing. As a result, the
contempt order which was issued on January 30, 2008 was not a faithful representation of the proceedings that
took place on said date. Records clearly show that not all of those who signed the contempt order were
present during the January 30, 2008 deliberation when the matter was taken up.
Section 21, Article VI of the Constitution states that:
The Senate or the House of Representatives or any of its respective committees may conduct inquiries
in aid of legislation in accordance with its duly published rules of procedure. The rights of person
appearing in or affected by such inquiries shall be respected. (Emphasis supplied)
All the limitations embodied in the foregoing provision form part of the witness settled expectation. If the
limitations are not observed, the witness settled expectation is shattered. Here, how could there be a majority
vote when the members in attendance are not enough to arrive at such majority? Petitioner has the right to
expect that he can be cited in contempt only through a majority vote in a proceeding in which the matter has
been fully deliberated upon. There is a greater measure of protection for the witness when the concerns and
objections of the members are fully articulated in such proceeding. We do not believe that respondent
Committees have the discretion to set aside their rules anytime they wish. This is especially true here where
what is involved is the contempt power. It must be stressed that the Rules are not promulgated for their benefit.
More than anybody else, it is the witness who has the highest stake in the proper observance of the Rules.
Having touched the subject of the Rules, we now proceed to respondent Committees fourth argument.
Respondent Committees argue that the Senate does not have to publish its Rules because the same was
published in 1995 and in 2006. Further, they claim that the Senate is a continuing body; thus, it is not required
to republish the Rules, unless the same is repealed or amended.
On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification. Certainly, there is
no debate that the Senate as an institution is "continuing", as it is not dissolved as an entity with each
national election or change in the composition of its members. However, in the conduct of its day-to-day
business the Senate of each Congress acts separately and independently of the Senate of the Congress
before it. The Rules of the Senate itself confirms this when it states:

RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the
same status.
All pending matters and proceedings shall terminate upon the expiration of one (1) Congress,
but may be taken by the succeeding Congress as if present for the first time. (emphasis supplied)
Undeniably from the foregoing, all pending matters and proceedings, i.e. unpassed bills and even legislative
investigations, of the Senate of a particular Congress are considered terminated upon the expiration of that
Congress and it is merely optional on the Senate of the succeeding Congress to take up such unfinished
matters, not in the same status, but as if presented for the first time. The logic and practicality of such a rule
is readily apparent considering that the Senate of the succeeding Congress (which will typically have a
different composition as that of the previous Congress) should not be bound by the acts and deliberations of
the Senate of which they had no part. If the Senate is a continuing body even with respect to the conduct of its
business, then pending matters will not be deemed terminated with the expiration of one Congress but will, as
a matter of course, continue into the next Congress with the same status.
This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the conduct of its
business is reflected in its Rules. The Rules of the Senate (i.e. the Senates main rules of procedure) states:
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136. At the start of each session in which the Senators elected in the preceding elections shall
begin their term of office, the President may endorse the Rules to the appropriate committee for
amendment or revision.
The Rules may also be amended by means of a motion which should be presented at least one day
before its consideration, and the vote of the majority of the Senators present in the session shall be
required for its approval. (emphasis supplied)
RULE LII
DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in force until
they are amended or repealed. (emphasis supplied)
Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate after an
election and the possibility of the amendment or revision of the Rules at the start of eachsession in which the
newly elected Senators shall begin their term.
However, it is evident that the Senate has determined that its main rules are intended to be valid from the date
of their adoption until they are amended or repealed. Such language is conspicuously absent from the Rules.
The Rules simply state "(t)hese Rules shall take effect seven (7) days after publication in two (2) newspapers
of general circulation."59 The latter does not explicitly provide for the continued effectivity of such rules until
they are amended or repealed. In view of the difference in the language of the two sets of Senate rules, it
cannot be presumed that the Rules (on legislative inquiries) would continue into the next Congress. The
Senate of the next Congress may easily adopt different rules for its legislative inquiries which come within the
rule on unfinished business.
The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in accordance
with the duly published rules of procedure is categorical. It is incumbent upon the Senate to publish the
rules for its legislative inquiries in each Congress or otherwise make the published rules clearly state that the

same shall be effective in subsequent Congresses or until they are amended or repealed to sufficiently put
public on notice.
If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the next
Congress, it could have easily adopted the same language it had used in its main rules regarding effectivity.
Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or proceedings
conducted pursuant to the subject Rules are null and void. Only those that result in violation of the rights of
witnesses should be considered null and void, considering that the rationale for the publication is to protect the
rights of witnesses as expressed in Section 21, Article VI of the Constitution. Sans such violation, orders and
proceedings are considered valid and effective.
Respondent Committees last argument is that their issuance of the contempt order is not precipitate or
arbitrary. Taking into account the totality of circumstances, we find no merit in their argument.
As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion of respondent
Committees, petitioner did not assume that they no longer had any other questions for him. He repeatedly
manifested his willingness to attend subsequent hearings and respond to new matters. His only request was
that he be furnished a copy of the new questions in advance to enable him to adequately prepare as a
resource person. He did not attend the November 20, 2007 hearing because Executive Secretary Ermita
requested respondent Committees to dispense with his testimony on the ground of executive privilege. Note
that petitioner is an executive official under the direct control and supervision of the Chief Executive. Why
punish petitioner for contempt when he was merely directed by his superior? Besides, save for the three (3)
questions, he was very cooperative during the September 26, 2007 hearing.
On the part of respondent Committees, this Court observes their haste and impatience. Instead of ruling on
Executive Secretary Ermitas claim of executive privilege, they curtly dismissed it as unsatisfactory and ordered
the arrest of petitioner. They could have informed petitioner of their ruling and given him time to decide whether
to accede or file a motion for reconsideration. After all, he is not just an ordinary witness; he is a high- ranking
official in a co-equal branch of government. He is an alter ego of the President. The same haste and
impatience marked the issuance of the contempt order, despite the absence of the majority of the members of
the respondent Committees, and their subsequent disregard of petitioners motion for reconsideration alleging
the pendency of his petition for certiorari before this Court.
On a concluding note, we are not unmindful of the fact that the Executive and the Legislature are political
branches of government. In a free and democratic society, the interests of these branches inevitably clash, but
each must treat the other with official courtesy and respect. This Court wholeheartedly concurs with the
proposition that it is imperative for the continued health of our democratic institutions that we preserve the
constitutionally mandated checks and balances among the different branches of government.
In the present case, it is respondent Committees contention that their determination on the validity of executive
privilege should be binding on the Executive and the Courts. It is their assertion that theirinternal procedures
and deliberations cannot be inquired into by this Court supposedly in accordance with the principle of respect
between co-equal branches of government. Interestingly, it is a courtesy that they appear to be unwilling to
extend to the Executive (on the matter of executive privilege) or this Court (on the matter of judicial review). It
moves this Court to wonder: In respondent Committees paradigm of checks and balances, what are the
checks to the Legislatures all-encompassing, awesome power of investigation? It is a power, like any other,
that is susceptible to grave abuse.
While this Court finds laudable the respondent Committees well-intentioned efforts to ferret out corruption,
even in the highest echelons of government, such lofty intentions do not validate or accord to Congress powers
denied to it by the Constitution and granted instead to the other branches of government.
There is no question that any story of government malfeasance deserves an inquiry into its veracity. As
respondent Committees contend, this is founded on the constitutional command of transparency and public

accountability. The recent clamor for a "search for truth" by the general public, the religious community and the
academe is an indication of a concerned citizenry, a nation that demands an accounting of an entrusted power.
However, the best venue for this noble undertaking is not in the political branches of government. The
customary partisanship and the absence of generally accepted rules on evidence are too great an obstacle in
arriving at the truth or achieving justice that meets the test of the constitutional guarantee of due process of
law. We believe the people deserve a more exacting "search for truth" than the process here in question, if that
is its objective.
WHEREFORE, respondent Committees Motion for Reconsideration dated April 8, 2008 is herebyDENIED.
SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga,
Chico-Nazario, Velasco, Jr., Nachura, Reyes, Brion, JJ., concur.
Dissenting Opinion - C.J. Puno
Separate Opinion on the Motion for Reconsideration - J. Quisumbing
Separate Dissenting Opinion - J. Azcuna
Separate Opinion - J. Reyes

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 187714

March 8, 2011

AQUILINO Q. PIMENTEL, JR., MANUEL B. VILLAR, JOKER P. ARROYO, FRANCIS N. PANGILINAN, PIA
S. CAYETANO, and ALAN PETER S. CAYETANO, Petitioners,
vs.
SENATE COMMITTEE OF THE WHOLE represented by SENATE PRESIDENT JUAN PONCE
ENRILE,Respondents.

DECISION
CARPIO, J.:
The Case
Before the Court is a petition for prohibition1 with prayer for issuance of a writ of preliminary injunction and/or
temporary restraining order filed by Senators Aquilino Q. Pimentel, Jr. (Senator Pimentel), Manuel B. Villar
(Senator Villar), Joker P. Arroyo, Francis N. Pangilinan, Pia S. Cayetano, and Alan Peter S. Cayetano
(petitioners). Petitioners seek to enjoin the Senate Committee of the Whole (respondent) from conducting
further hearings on the complaint filed by Senator Maria Ana Consuelo A.S. Madrigal (Senator Madrigal)
against Senator Villar pursuant to Senate Resolution No. 706 (P.S. Resolution 706) on the alleged double
insertion of P200 million for the C-5 Road Extension Project in the 2008 General Appropriations Act.
The Antecedents
On 15 September 2008, Senator Panfilo Lacson (Senator Lacson) delivered a privilege speech entitled "Kaban
ng Bayan, Bantayan!"2 In his privilege speech, Senator Lacson called attention to the congressional insertion in
the 2008 General Appropriations Act, particularly the P200 million appropriated for the construction of the
President Carlos P. Garcia Avenue Extension from Sucat Luzon Expressway to Sucat Road in Paraaque City
including Right-of-Way (ROW), and another P200 million appropriated for the extension of C-5 road including
ROW. Senator Lacson stated that C-5 is what was formerly called President Carlos P. Garcia Avenue and that
the second appropriation covers the same stretch from Sucat Luzon Expressway to Sucat Road in
Paraaque City. Senator Lacson inquired from DBM Secretary Rolando Andaya, Jr. about the double entry and
was informed that it was on account of a congressional insertion. Senator Lacson further stated that when he
followed the narrow trail leading to the double entry, it led to Senator Villar, then the Senate President.
On 8 October 2008, Senator Madrigal introduced P.S. Resolution 706,3 the full text of which reads:
WHEREAS the Senate President has repeatedly and publicly "advocated" (sic) the construction of the C-5
Road/Pres. C.P. Garcia Avenue Extension linking Sucat Road in Paraaque City to the South Luzon
Expressway;
WHEREAS it was discovered that there was a double insertion of P200 million for the C-5 Road Extension
project in the 2008 General Appropriations Act;
WHEREAS Committee on Finance Chair Sen. Juan Ponce Enrile confirmed that the double insertion for the C5 Road Extension Project was made by the Senate President;
WHEREAS this double insertion is only the tip of the iceberg;
WHEREAS there is overwhelming evidence to show that the Senate President, from the time he was member
of the House of Representatives, used his influence on the executive to cause the realignment of the C-5 Road
Extension project to ensure that his properties in Barangay San Dionisio, Paraaque City and Barangays
Pulang Lupa and Mayuno Uno, Las Pias would be financially benefited by the construction of the new road;
WHEREAS there is overwhelming evidence to show that the Senate President, through his corporations,
negotiated the sale of his properties as roads right of way to the government, the same properties affected by
the projects he proposed;
WHEREAS there is overwhelming evidence to show that the Senate President caused the sale of his
landholdings to government as a grossly overpriced cost prejudicial to other lot owners in the area, the
government, and the Filipino people;

WHEREAS there is overwhelming evidence to show that the Senate President, in the overpriced sale of
another property, used his power and influence to extort from the original landowner the profit made from the
overprice by the Villar owned corporations;
WHEREAS these acts of the Senate President are in direct violation of the Constitution, the Anti-Graft and
Corrupt Practices Act, the Code of Conduct and Ethical Standards of Public Officers;
WHEREAS the Senate President has violated the public trust of the people in order to serve his personal
interests thereby sacrificing the peoples welfare;
WHEREAS the illegal and unethical conduct of the Senate President has betrayed the trust of the people, and
by doing so has shamed the Philippine Senate;
WHEREAS it is incumbent upon the members of the Senate now to reclaim the peoples trust and confidence
and show that the illegal conduct of any of its member, even of its leaders, shall not go unpunished;
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, TO DIRECT THE COMMITTEE ON
ETHICS AND PRIVILEGES TO INVESTIGATE THE CONDUCT OF SENATE PRESIDENT MANUEL B.
VILLAR, JR. FOR USING HIS POSITION OF POWER TO INFLUENCE PUBLIC OFFICIALS IN RELOCATING
THE C-5 ROAD EXTENSION PROJECT TO DELIBERATELY PASS THRU HIS PROPERTIES, AND TO
NEGOTIATE THE OVERPRICED PURCHASE OF ROAD RIGHTS OF WAY THRU SEVERAL PROPERTIES
ALSO OWNED BY HIS CORPORATIONS REDOUNDING IN HUGE PERSONAL FINANCIAL BENEFITS FOR
HIM TO THE DETRIMENT OF THE FILIPINO PEOPLE, THEREBY RESULTING IN A BLATANT CONFLICT
OF INTEREST.
Adopted,
(Sgd.)
M.A. MADRIGAL4
On even date, P.S. Resolution 706 was referred to the Committee on Ethics and Privileges (Ethics Committee)
which at that time was composed of the following members:
Sen. Pia S. Cayetano - Chairperson
Sen. Loren Legarda - Member in lieu of Sen. Madrigal
Sen. Joker Arroyo - Member
Sen. Alan Peter Cayetano- Member
Sen. Miriam Defensor-Santiago- Member
Sen. Gregorio Honasan - Member
Sen. Panfilo Lacson - Inhibited and replaced by Sen. Rodolfo Biazon
On 17 November 2008, Senator Juan Ponce Enrile (Senator Enrile) was elected Senate President. The Ethics
Committee was reorganized with the election of Senator Lacson as Chairperson, and Senators Richard
Gordon, Gregorio Honasan, Loren Legarda, and Mar Roxas as members for the Majority. On 16 December
2008, Senator Lacson inquired whether the Minority was ready to name their representatives to the Ethics
Committee.5 After consultation with the members of the Minority, Senator Pimentel informed the body that
there would be no member from the Minority in the Ethics Committee.6 On 26 January 2009, Senator Lacson
reiterated his appeal to the Minority to nominate their representatives to the Ethics Committee.7 Senator
Pimentel stated that it is the stand of the Minority not to nominate any of their members to the Ethics

Committee, but he promised to convene a caucus to determine if the Minoritys decision on the matter is
final.8 Thereafter, the Senate adopted the Rules of the Senate Committee on Ethics and Privileges (Committee
Rules) which was published in the Official Gazette on 23 March 2009.9
On 20 April 2009, Senator Villar delivered a privilege speech10 where he stated that he would answer the
accusations against him on the floor and not before the Ethics Committee. On 27 April 2009, Senator Lacson
delivered another privilege speech11 where he stated that the Ethics Committee was not a kangaroo court.
However, due to the accusation that the Ethics Committee could not act with fairness on Senator Villars case,
Senator Lacson moved that the responsibility of the Ethics Committee be undertaken by the Senate, acting as
a Committee of the Whole. The motion was approved with ten members voting in favor, none against, and five
abstentions.12
Respondent Senate Committee of the Whole conducted its hearings on 4 May 2009, with eleven Senators
present, and on 7 May 2009, with eight Senators present. On both hearings, petitioners objected to the
application of the Rules of the Ethics Committee to the Senate Committee of the Whole. In particular,
petitioners questioned the determination of the quorum. On 11 May 2009, petitioners proposed 11
amendments to the Rules of the Ethics Committee that would constitute the Rules of the Senate Committee of
the Whole, out of which three amendments were adopted. On 14 May 2009, Senator Pimentel raised as an
issue the need to publish the proposed amended Rules of the Senate Committee of the Whole. On even date,
respondent proceeded with the Preliminary Inquiry on P.S. Resolution 706. On 18 May 2009, the Chairman
submitted a report on the Preliminary Inquiry with a directive to all Senators to come up with a decision on the
preliminary report on 21 May 2009. On 21 May 2009, respondent declared that there was substantial evidence
to proceed with the adjudicatory hearing. The preliminary conference was set on 26 May 2009.
Petitioners came to this Court for relief, raising the following grounds:
1. The transfer of the complaint against Senator Villar from the Ethics Committee to the Senate
Committee of the Whole is violative of Senator Villars constitutional right to equal protection;
2. The Rules adopted by the Senate Committee of the Whole for the investigation of the complaint filed
by Senator Madrigal against Senator Villar is violative of Senator Villars right to due process and of the
majority quorum requirement under Art. VI, Sec. 16(2) of the Constitution; and
3. The Senate Committee of the Whole likewise violated the due process clause of the Constitution
when it refused to publish the Rules of the Senate Committee of the Whole in spite of its own provision
[which] require[s] its effectivity upon publication.13
In its Comment, respondent argues that:
1. The instant petition should be dismissed for failure to join or implead an indispensable party. In the
alternative, the instant petition should be archived until such time that the said indispensable party has
been joined or impleaded and afforded the opportunity to be heard;
2. There was no grave abuse of discretion on the part of respondent Committee;
3. Petitioners are not entitled to a writ of prohibition for failure to prove grave abuse of discretion on the
part of respondent Committee of the Whole;
4. The principle of separation of powers must be upheld;
5. The instant petition must be dismissed for being premature. Petitioners failed to observe the doctrine
or primary jurisdiction or prior resort;
6. It is within the power of Congress to discipline its members for disorderly behavior;

7. The determination of what constitutes disorderly behavior is a political question which exclusively
pertains to Congress;
8. The Internal Rules of the Senate are not subject to judicial review in the absence of grave abuse of
discretion; [and]
9. The Rules of the Ethics Committee, which have been duly published and adopted[,] allow the
adoption of supplementary rules to govern adjudicatory hearings.14
The Issues
The issues for the Courts resolution are the following:
1. Whether Senator Madrigal, who filed the complaint against Senator Villar, is an indispensable party
in this petition;
2. Whether the petition is premature for failure to observe the doctrine of primary jurisdiction or prior
resort;
3. Whether the transfer of the complaint against Senator Villar from the Ethics Committee to the Senate
Committee of the Whole is violative of Senator Villars right to equal protection;
4. Whether the adoption of the Rules of the Ethics Committee as Rules of the Senate Committee of the
Whole is a violative of Senator Villars right to due process and of the majority quorum requirement
under Art. VI, Section 16(2) of the Constitution; and
5. Whether publication of the Rules of the Senate Committee of the Whole is required for their
effectivity.
The Ruling of this Court
Indispensable Party
Section 7, Rule 3 of the 1997 Rules of Civil Procedure provides:
SEC. 7 Compulsory joinder of indispensable parties. - Parties in interest without whom no final determination
can be had of an action shall be joined as plaintiffs or defendants.
The test to determine if a party is an indispensable party is as follows:
An indispensable party is a party who has an interest in the controversy or subject matter that a final
adjudication cannot be made, in his absence, without injuring or affecting that interest, a party who has not only
an interest in the subject matter of the controversy, but also has an interest of such nature that a final decree
cannot be made without affecting his interest or leaving the controversy in such a condition that its final
determination may be wholly inconsistent with equity and good conscience. It has also been considered that an
indispensable party is a person in whose absence there cannot be a determination between the parties already
before the court which is effective, complete or equitable. Further, an indispensable party is one who must be
included in an action before it may properly go forward.
A person who is not an indispensable party, however, if his interest in the controversy or subject matter is
separable from the interest of the other parties, so that it will not necessarily be directly or injuriously affected
by a decree which does complete justice between them. Also, a person is not an indispensable party if his
presence would merely permit a complete relief between him and those already parties to the action, or if he
has no interest in the subject matter of the action. It is not a sufficient reason to declare a person to be an
indispensable party that his presence will avoid multiple litigation.15

In this case, Senator Madrigal is not an indispensable party to the petition before the Court. While it may be
true that she has an interest in the outcome of this case as the author of P.S. Resolution 706, the issues in this
case are matters of jurisdiction and procedure on the part of the Senate Committee of the Whole which can be
resolved without affecting Senator Madrigals interest. The nature of Senator Madrigals interest in this case is
not of the nature that this case could not be resolved without her participation.1awphi1
Doctrine of Primary Jurisdiction
Respondent asserts that the doctrine of primary jurisdiction "simply calls for the determination of administrative
questions, which are ordinarily questions of fact, by administrative agencies rather than by courts of
justice."16Citing Pimentel v. HRET,17 respondent avers that primary recourse of petitioners should have been to
the Senate and that this Court must uphold the separation of powers between the legislative and judicial
branches of the government.
The doctrine of primary jurisdiction does not apply to this case. The Court has ruled:
x x x It may occur that the Court has jurisdiction to take cognizance of a particular case, which means that the
matter involved is also judicial in character. However, if the case is such that its determination requires the
expertise, specialized skills and knowledge of the proper administrative bodies because technical matters or
intricate questions of fact are involved, then relief must first be obtained in an administrative proceeding before
a remedy will be supplied by the courts even though the matter is within the proper jurisdiction of the court. x x
x18
The issues presented here do not require the expertise, specialized skills and knowledge of respondent for
their resolution. On the contrary, the issues here are purely legal questions which are within the competence
and jurisdiction of the Court, and not an administrative agency or the Senate to resolve.19
As regards respondents invocation of separation of powers, the Court reiterates that "the inviolate doctrine of
separation of powers among the legislative, executive or judicial branches of government by no means
prescribes for absolute autonomy in the discharge by each of that part of the governmental power assigned to
it by the sovereign people."20 Thus, it has been held that "the power of judicial review is not so much power as
it is [a] duty imposed on this Court by the Constitution and that we would be remiss in the performance of that
duty if we decline to look behind the barriers set by the principle of separation of powers."21 The Court,
therefore, is not precluded from resolving the legal issues raised by the mere invocation by respondent of the
doctrine of separation of powers. On the contrary, the resolution of the legal issues falls within the exclusive
jurisdiction of this Court.
Transfer of the Complaint from the Ethics Committee
to the Senate Committee on the Whole
Petitioners allege that the transfer of the complaint against Senator Villar to the Senate Committee of the
Whole violates his constitutional right to equal protection. Petitioners allege that the Senate Committee of the
Whole was constituted solely for the purpose of assuming jurisdiction over the complaint against Senator Villar.
Petitioners further allege that the act was discriminatory and removed Senator Villars recourse against any
adverse report of the Ethics Committee to the Senate as a body.
We do not agree with petitioners.
Reviewing the events that led to the constitution of the Senate Committee of the Whole, the Court notes that
upon the election of Senator Enrile as Senate President on 17 November 2008, the Ethics Committee was also
reorganized. Senator Lacson, who first called the Senates attention to the alleged irregularities committed by
Senator Villar, was elected as Chairperson. On 16 December 2008, when Senator Lacson inquired whether the
Minority was ready to name their representatives to the Ethics Committee, Senator Pimentel informed the body
that there would be no member from the Minority in the Ethics Committee. On 26 January 2009, Senator

Lacson reiterated his appeal to the Minority to nominate their representatives to the Ethics Committee. Senator
Pimentel informed him that it is the stand of the Minority not to nominate any of their members to the Ethics
Committee. Senator Pimentel promised to convene a caucus to determine if the Minoritys decision on the
matter is final but the records did not show that a caucus was convened.
On 20 April 2009, Senator Villar delivered a privilege speech where he stated that he would answer the
accusations against him on the floor and not before the Ethics Committee. It was because of the
accusation that the Ethics Committee could not act with fairness on Senator Villars case that Senator Lacson
moved that the responsibility of the Ethics Committee be undertaken by the Senate acting as a Committee of
the Whole, which motion was approved with ten members voting in favor, none against, and five abstentions.
The Rules of the Ethics Committee provide that "all matters relating to the conduct, rights, privileges, safety,
dignity, integrity and reputation of the Senate and its Members shall be under the exclusive jurisdiction of the
Senate Committee on Ethics and Privileges."22 However, in this case, the refusal of the Minority to name its
members to the Ethics Committee stalled the investigation. In short, while ordinarily an investigation about one
of its members alleged irregular or unethical conduct is within the jurisdiction of the Ethics Committee, the
Minority effectively prevented it from pursuing the investigation when they refused to nominate their members
to the Ethics Committee. Even Senator Villar called the Ethics Committee a kangaroo court and declared that
he would answer the accusations against him on the floor and not before the Ethics Committee. Given the
circumstances, the referral of the investigation to the Committee of the Whole was an extraordinary remedy
undertaken by the Ethics Committee and approved by a majority of the members of the Senate.
Adoption of the Rules of the Ethics Committee
by the Senate Committee of the Whole
Petitioners allege that the adoption of the Rules of the Ethics Committee by the Senate Committee of the
Whole is violative of Senator Villars right to due process.
We do not agree.
Again, we reiterate that, considering the circumstances of this case, the referral of the investigation by the
Ethics Committee to the Senate Committee of the Whole is an extraordinary remedy that does not violate
Senator Villars right to due process. In the same manner, the adoption by the Senate Committee of the Whole
of the Rules of the Ethics Committee does not violate Senator Villars right to due process.
The Constitutional right of the Senate to promulgate its own rules of proceedings has been recognized and
affirmed by this Court. Thus:
First. Section 16(3), Article VI of the Philippine Constitution states: "Each House shall determine the rules of its
proceedings."
This provision has been traditionally construed as a grant of full discretionary authority to the House of
Congress in the formulation, adoption and promulgation of its own rules. As such, the exercise of this power is
generally exempt from judicial supervision and interference, except on a clear showing of such arbitrary and
improvident use of the power as will constitute a denial of due process.
x x x. The issue partakes of the nature of a political question which, under the Constitution, is to be decided by
the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to
the legislative or executive branch of the government. Further, pursuant to his constitutional grant of virtually
unrestricted authority to determine its own rules, the Senate is at liberty to alter or modify these rules at any
time it may see fit, subject only to the imperatives of quorum, voting and publication.23

The only limitation to the power of Congress to promulgate its own rules is the observance of quorum, voting,
and publication when required. As long as these requirements are complied with, the Court will not interfere
with the right of Congress to amend its own rules.
Prior Publication
Petitioners assail the non-publication of the Rules of the Senate Committee of the Whole. Respondent
counters that publication is not necessary because the Senate Committee of the Whole merely adopted the
Rules of the Ethics Committee which had been published in the Official Gazette on 23 March 2009.
Respondent alleges that there is only one set of Rules that governs both the Ethics Committee and the Senate
Committee of the Whole.
In Neri v. Senate Committee on Accountability of Public Officers and Investigations,24 the Court declared void
unpublished rules of procedure in Senate inquiries insofar as such rules affect the rights of witnesses. The
Court cited Section 21, Article VI of the Constitution which mandates:
Sec. 21. The Senate or the House of Representatives or any of its respective Committees may conduct
inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be respected. (Emphasis supplied)
The Court explained in the Resolution25 denying the motion for reconsideration:
The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in accordance
with the duly published rules of procedure is categorical. It is incumbent upon the Senate to publish the
rules of its legislative inquiries in each Congress or otherwise make the published rules clearly state that the
same shall be effective in the subsequent Congresses or until they are amended or repealed to sufficiently put
public on notice.
If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the next
Congress, it could have easily adopted the same language it had used in its main rules regarding effectivity.
Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or proceedings
conducted pursuant to the subject Rules are null and void. Only those that result in violation of the rights
of witnesses should be considered null and void, considering that the rationale for the publication is to
protect the rights of the witnesses as expressed in Section 21, Article VI of the Constitution. Sans such
violation, orders and proceedings are considered valid and effective.26 (Emphasis supplied)
In the recent case of Gutierrez v. The House of Representatives Committee on Justice, et al.,27 the Court
further clarified:
x x x inquiries in aid of legislation under Section 21, Article VI of the Constitution is the sole instance in the
Constitution where there is a categorical directive to duly publish a set of rules of procedure. Significantly
notable in Neri is that with respect to the issue of publication, the Court anchored its ruling on
the 1987Constitutions directive, without any reliance on or reference to the 1986 case of Taada v.
Tuvera. Taadanaturally could neither have interpreted a forthcoming 1987 Constitution nor had kept a tight
rein on the Constitutions intentions as expressed through the allowance of either a categorical term or a
general sense of making known the issuances.28
The Constitution does not require publication of the internal rules of the House or Senate. Since rules of the
House or the Senate that affect only their members are internal to the House or Senate, such rules need not
be published, unless such rules expressly provide for their publication before the rules can take effect.
In this case, the proceedings before the Senate Committee of the Whole affect only members of the Senate
since the proceedings involve the Senates exercise of its disciplinary power over one of its members. Clearly,

the Rules of the Senate Committee of the Whole are internal to the Senate. However, Section 81, Rule 15 of
the Rules of the Senate Committee of the Whole provides:
Sec. 81. EFFECTIVITY. These Rules shall be effective after publication in the Official Gazette or in a
newspaper of general circulation.29
Hence, in this particular case, the Rules of the Senate Committee of the Whole itself provide that the Rules
must be published before the Rules can take effect. Thus, even if publication is not required under the
Constitution, publication of the Rules of the Senate Committee of the Whole is required because the Rules
expressly mandate their publication. The majority of the members of the Senate approved the Rules of the
Senate Committee of the Whole, and the publication requirement which they adopted should be considered as
the will of the majority. Respondent cannot dispense with the publication requirement just because the Rules of
the Ethics Committee had already been published in the Official Gazette. To reiterate, the Rules of the Senate
Committee of the Whole expressly require publication before the Rules can take effect. To comply with due
process requirements, the Senate must follow its own internal rules if the rights of its own members are
affected.
Incidentally, we note that Section 4, Rule 1 of the Rules of the Senate Committee of the Whole30 is an exact
reproduction of Section 4, Rule 1 of the Rules of the Senate Committee on Ethics and Privileges31 which states
that the Ethics Committee shall be composed of seven members, contrary to the fact that the Senate
Committee of the Whole consists of all members of the Senate. In addition, Section 5(B), Rule 1 of the Rules of
the Senate Committee of the Whole32 is an exact reproduction of Section 5(B), Rule 1 of the Rules of the
Senate Committee on Ethics and Privileges33 which states that only two members of the Ethics Committee
shall constitute a quorum, contrary to respondents allegation in its Comment that eight members of the Senate
Committee of the Whole shall constitute a quorum.34
However, if the Senate is constituted as a Committee of the Whole, a majority of the Senate is required to
constitute a quorum to do business pursuant to Section 16(2), Article VI of the Constitution.35 Otherwise, there
will be a circumvention of this express provision of the Constitution on quorum requirement. Obviously, the
Rules of the Senate Committee of the Whole require modification to comply with requirements of quorum and
voting which the Senate must have overlooked in this case. In any event, in case of conflict between the Rules
of the Senate Committee of the Whole and the Constitution, the latter will of course prevail.
WHEREFORE, we GRANT the petition in part. The referral of the complaint by the Committee on Ethics and
Privileges to the Senate Committee of the Whole shall take effect only upon publication of the Rules of the
Senate Committee of the Whole.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
CONCHITA CARPIO MORALES
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

JOSE C. MENDOZA
Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the opinion of the Court.
RENATO C. CORONA
Chief Justice

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 138322

October 2, 2001

GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner,

vs.
REDERICK A. RECIO, respondents.
PANGANIBAN, J.:

A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid
according to the national law of the foreigner. However, the divorce decree and the governing personal law of
the alien spouse who obtained the divorce must be proven. Our courts do not take judicial notice of foreign
laws and judgment; hence, like any other facts, both the divorce decree and the national law of the alien must
be alleged and proven according to our law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the January 7, 1999
Decision1 and the March 24, 1999 Order2 of the Regional Trial Court of Cabanatuan City, Branch 28, in Civil
Case No. 3026-AF. The assailed Decision disposed as follows:
"WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A. Recio
solemnized on January 12, 1994 at Cabanatuan City as dissolved and both parties can now remarry
under existing and applicable laws to any and/or both parties."3
The assailed Order denied reconsideration of the above-quoted Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal, on March
1, 1987.4 They lived together as husband and wife in Australia. On May 18, 1989,5 a decree of divorce,
purportedly dissolving the marriage, was issued by an Australian family court.
On June 26, 1992, respondent became an Australian citizen, as shown by a "Certificate of Australian
Citizenship" issued by the Australian government.6 Petitioner a Filipina and respondent were married on
January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan City.7 In their application for a marriage
license, respondent was declared as "single" and "Filipino."8
Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolution of their
marriage. While the two were still in Australia, their conjugal assets were divided on May 16, 1996, in
accordance with their Statutory Declarations secured in Australia.9
On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage10 in the court a quo, on the
ground of bigamy respondent allegedly had a prior subsisting marriage at the time he married her on January
12, 1994. She claimed that she learned of respondent's marriage to Editha Samson only in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his prior
marriage andits subsequent dissolution.11 He contended that his first marriage to an Australian citizen had been
validly dissolved by a divorce decree obtained in Australian in 1989;12 thus, he was legally capacitated to marry
petitioner in 1994.1wphi1.nt
On July 7, 1998 or about five years after the couple's wedding and while the suit for the declaration of nullity
was pending respondent was able to secure a divorce decree from a family court in Sydney, Australia
because the "marriage ha[d] irretrievably broken down."13
Respondent prayed in his Answer that the Complained be dismissed on the ground that it stated no cause of
action.14 The Office of the Solicitor General agreed with respondent.15 The court marked and admitted the
documentary evidence of both parties.16 After they submitted their respective memoranda, the case was
submitted for resolution.17
Thereafter, the trial court rendered the assailed Decision and Order.

Ruling of the Trial Court

The trial court declared the marriage dissolved on the ground that the divorce issued in Australia was valid and
recognized in the Philippines. It deemed the marriage ended, but not on the basis of any defect in an essential
element of the marriage; that is, respondent's alleged lack of legal capacity to remarry. Rather, it based its
Decision on the divorce decree obtained by respondent. The Australian divorce had ended the marriage; thus,
there was no more martial union to nullify or annual.
Hence, this Petition.18
Issues
Petitioner submits the following issues for our consideration:
"I
The trial court gravely erred in finding that the divorce decree obtained in Australia by the
respondent ipso facto terminated his first marriage to Editha Samson thereby capacitating him to
contract a second marriage with the petitioner.
"2
The failure of the respondent, who is now a naturalized Australian, to present a certificate of legal
capacity to marry constitutes absence of a substantial requisite voiding the petitioner' marriage to the
respondent.
"3
The trial court seriously erred in the application of Art. 26 of the Family Code in this case.
"4
The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of the
Family Code as the applicable provisions in this case.
"5
The trial court gravely erred in pronouncing that the divorce gravely erred in pronouncing that the
divorce decree obtained by the respondent in Australia ipso facto capacitated the parties to remarry,
without first securing a recognition of the judgment granting the divorce decree before our courts."19
The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two pivotal ones: (1)
whether the divorce between respondent and Editha Samson was proven, and (2) whether respondent was
proven to be legally capacitated to marry petitioner. Because of our ruling on these two, there is no more
necessity to take up the rest.
The Court's Ruling
The Petition is partly meritorious.
First Issue:

Proving the Divorce Between Respondent and Editha Samson

Petitioner assails the trial court's recognition of the divorce between respondent and Editha Samson.
Citing Adong v. Cheong Seng Gee,20 petitioner argues that the divorce decree, like any other foreign judgment,
may be given recognition in this jurisdiction only upon proof of the existence of (1) the foreign law allowing
absolute divorce and (2) the alleged divorce decree itself. She adds that respondent miserably failed to
establish these elements.
Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages solemnized
abroad are governed by the law of the place where they were celebrated (the lex loci celebrationist). In effect,
the Code requires the presentation of the foreign law to show the conformity of the marriage in question to the
legal requirements of the place where the marriage was performed.
At the outset, we lay the following basic legal principles as the take-off points for our discussion. Philippine law
does not provide for absolute divorce; hence, our courts cannot grant it.21 A marriage between two Filipinos
cannot be dissolved even by a divorce obtained abroad, because of Articles 1522 and 1723 of the Civil Code.24 In
mixed marriages involving a Filipino and a foreigner, Article 2625 of the Family Code allows the former to
contract a subsequent marriage in case the divorce is "validly obtained abroad by the alien spouse
capacitating him or her to remarry."26 A divorce obtained abroad by a couple, who are both aliens, may be
recognized in the Philippines, provided it is consistent with their respective national laws.27
A comparison between marriage and divorce, as far as pleading and proof are concerned, can be made. Van
Dorn v. Romillo Jr. decrees that "aliens may obtain divorces abroad, which may be recognized in the
Philippines, provided they are valid according to their national law."28 Therefore, before a foreign divorce
decree can be recognized by our courts, the party pleading it must prove the divorce as a fact and demonstrate
its conformity to the foreign law allowing it.29 Presentation solely of the divorce decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply with the
registration requirements under Articles 11, 13 and 52 of the Family Code. These articles read as follows:
"ART. 11. Where a marriage license is required, each of the contracting parties shall file separately a
sworn application for such license with the proper local civil registrar which shall specify the following:
xxx

xxx

xxx

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

xxx

xxx

"ART. 13. In case either of the contracting parties has been previously married, the applicant shall be
required to furnish, instead of the birth of baptismal certificate required in the last preceding article, the
death certificate of the deceased spouse or the judicial decree of annulment or declaration of nullity of
his or her previous marriage. x x x.
"ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution
of the properties of the spouses, and the delivery of the children's presumptive legitimes shall be
recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect
their persons."

Respondent, on the other hand, argues that the Australian divorce decree is a public document a written
official act of an Australian family court. Therefore, it requires no further proof of its authenticity and due
execution.
Respondent is getting ahead of himself. Before a foreign judgment is given presumptive evidentiary value, the
document must first be presented and admitted in evidence.30 A divorce obtained abroad is proven by the
divorce decree itself. Indeed the best evidence of a judgment is the judgment itself.31 The decree purports to be
a written act or record of an act of an officially body or tribunal of a foreign country.32
Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a public or
official record of a foreign country by either (1) an official publication or (2) a copy thereof attested33 by the
officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a)
accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign
service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his
office.34
The divorce decree between respondent and Editha Samson appears to be an authentic one issued by an
Australian family court.35 However, appearance is not sufficient; compliance with the aforemetioned rules on
evidence must be demonstrated.
Fortunately for respondent's cause, when the divorce decree of May 18, 1989 was submitted in evidence,
counsel for petitioner objected, not to its admissibility, but only to the fact that it had not been registered in the
Local Civil Registry of Cabanatuan City.36 The trial court ruled that it was admissible, subject to petitioner's
qualification.37Hence, it was admitted in evidence and accorded weight by the judge. Indeed, petitioner's failure
to object properly rendered the divorce decree admissible as a written act of the Family Court of Sydney,
Australia.38
Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary; respondent was no
longer bound by Philippine personal laws after he acquired Australian citizenship in 1992.39 Naturalization is
the legal act of adopting an alien and clothing him with the political and civil rights belonging to a
citizen.40 Naturalized citizens, freed from the protective cloak of their former states, don the attires of their
adoptive countries. By becoming an Australian, respondent severed his allegiance to the Philippines and
the vinculum juris that had tied him to Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian divorce law falls upon petitioner, because she is the
party challenging the validity of a foreign judgment. He contends that petitioner was satisfied with the original of
the divorce decree and was cognizant of the marital laws of Australia, because she had lived and worked in
that country for quite a long time. Besides, the Australian divorce law is allegedly known by Philippine courts:
thus, judges may take judicial notice of foreign laws in the exercise of sound discretion.
We are not persuaded. The burden of proof lies with "the party who alleges the existence of a fact or thing
necessary in the prosecution or defense of an action."41 In civil cases, plaintiffs have the burden of proving the
material allegations of the complaint when those are denied by the answer; and defendants have the burden of
proving the material allegations in their answer when they introduce new matters.42 Since the divorce was a
defense raised by respondent, the burden of proving the pertinent Australian law validating it falls squarely
upon him.
It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws. 43 Like any other
facts, they must be alleged and proved. Australian marital laws are not among those matters that judges are

supposed to know by reason of their judicial function.44 The power of judicial notice must be exercised with
caution, and every reasonable doubt upon the subject should be resolved in the negative.
Second Issue:
Respondent's Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legally incapacitated to
marry her in 1994.
Hence, she concludes that their marriage was void ab initio.
Respondent replies that the Australian divorce decree, which was validly admitted in evidence, adequately
established his legal capacity to marry under Australian law.
Respondent's contention is untenable. In its strict legal sense, divorce means the legal dissolution of a lawful
union for a cause arising after marriage. But divorces are of different types. The two basic ones are (1)
absolute divorce or a vinculo matrimonii and (2) limited divorce or a mensa et thoro. The first kind terminates
the marriage, while the second suspends it and leaves the bond in full force.45 There is no showing in the case
at bar which type of divorce was procured by respondent.
Respondent presented a decree nisi or an interlocutory decree a conditional or provisional judgment of
divorce. It is in effect the same as a separation from bed and board, although an absolute divorce may follow
after the lapse of the prescribed period during which no reconciliation is effected.46
Even after the divorce becomes absolute, the court may under some foreign statutes and practices, still restrict
remarriage. Under some other jurisdictions, remarriage may be limited by statute; thus, the guilty party in a
divorce which was granted on the ground of adultery may be prohibited from remarrying again. The court may
allow a remarriage only after proof of good behavior.47
On its face, the herein Australian divorce decree contains a restriction that reads:
"1. A party to a marriage who marries again before this decree becomes absolute (unless the other
party has died) commits the offence of bigamy."48
This quotation bolsters our contention that the divorce obtained by respondent may have been restricted. It did
not absolutely establish his legal capacity to remarry according to his national law. Hence, we find no basis for
the ruling of the trial court, which erroneously assumed that the Australian divorce ipso facto restored
respondent's capacity to remarry despite the paucity of evidence on this matter.
We also reject the claim of respondent that the divorce decree raises a disputable presumption or presumptive
evidence as to his civil status based on Section 48, Rule 3949 of the Rules of Court, for the simple reason that
no proof has been presented on the legal effects of the divorce decree obtained under Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not
submitted together with the application for a marriage license. According to her, its absence is proof that
respondent did not have legal capacity to remarry.
We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the party
concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficient to establish

the legal capacity of respondent, had he duly presented it in court. A duly authenticated and admitted certificate
is prima facie evidence of legal capacity to marry on the part of the alien applicant for a marriage license.50
As it is, however, there is absolutely no evidence that proves respondent's legal capacity to marry petitioner. A
review of the records before this Court shows that only the following exhibits were presented before the lower
court: (1) for petitioner: (a) Exhibit "A" Complaint;51 (b) Exhibit "B" Certificate of Marriage Between Rederick
A. Recto (Filipino-Australian) and Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan City, Nueva
Ecija;52(c) Exhibit "C" Certificate of Marriage Between Rederick A. Recio (Filipino) and Editha D. Samson
(Australian) on March 1, 1987 in Malabon, Metro Manila;53 (d) Exhibit "D" Office of the City Registrar of
Cabanatuan City Certification that no information of annulment between Rederick A. Recto and Editha D.
Samson was in its records;54 and (e) Exhibit "E" Certificate of Australian Citizenship of Rederick A.
Recto;55 (2) for respondent: (Exhibit "1" Amended Answer;56 (b) Exhibit "S" Family Law Act 1975 Decree
Nisi of Dissolution of Marriage in the Family Court of Australia;57 (c) Exhibit "3" Certificate of Australian
Citizenship of Rederick A. Recto;58 (d) Exhibit "4" Decree Nisi of Dissolution of Marriage in the Family Court
of Australia Certificate;59 and Exhibit "5" Statutory Declaration of the Legal Separation Between Rederick A.
Recto and Grace J. Garcia Recio since October 22, 1995.60
Based on the above records, we cannot conclude that respondent, who was then a naturalized Australian
citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree with petitioner's contention
that the court a quo erred in finding that the divorce decree ipso facto clothed respondent with the legal
capacity to remarry without requiring him to adduce sufficient evidence to show the Australian personal law
governing his status; or at the very least, to prove his legal capacity to contract the second marriage.
Neither can we grant petitioner's prayer to declare her marriage to respondent null and void on the ground of
bigamy. After all, it may turn out that under Australian law, he was really capacitated to marry petitioner as a
direct result of the divorce decree. Hence, we believe that the most judicious course is to remand this case to
the trial court to receive evidence, if any, which show petitioner's legal capacity to marry petitioner. Failing in
that, then the court a quo may declare a nullity of the parties' marriage on the ground of bigamy, there being
already in evidence two existing marriage certificates, which were both obtained in the Philippines, one in
Malabon, Metro Manila dated March 1, 1987 and the other, in Cabanatuan City dated January 12, 1994.
WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the case to the
court a quo for the purpose of receiving evidence which conclusively show respondent's legal capacity to marry
petitioner; and failing in that, of declaring the parties' marriage void on the ground of bigamy, as above
discussed. No costs.
SO ORDERED.
Melo, Puno, Vitug, and Sandoval-Gutierrez, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 164815

September 3, 2009

SR. INSP. JERRY C. VALEROSO, Petitioner,

vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents.
RESOLUTION
NACHURA, J.:
For resolution is the Letter-Appeal1 of Senior Inspector (Sr. Insp.) Jerry C. Valeroso (Valeroso) praying that our
February 22, 2008 Decision2 and June 30, 2008 Resolution3 be set aside and a new one be entered acquitting
him of the crime of illegal possession of firearm and ammunition.
The facts are briefly stated as follows:
Valeroso was charged with violation of Presidential Decree No. 1866, committed as follows:
That on or about the 10th day of July, 1996, in Quezon City, Philippines, the said accused without any authority
of law, did then and there willfully, unlawfully and knowingly have in his/her possession and under his/her
custody and control
One (1) cal. 38 "Charter Arms" revolver bearing serial no. 52315 with five (5) live ammo.
without first having secured the necessary license/permit issued by the proper authorities.
CONTRARY TO LAW.4
When arraigned, Valeroso pleaded "not guilty."5 Trial on the merits ensued.
During trial, the prosecution presented two witnesses: Senior Police Officer (SPO)2 Antonio Disuanco
(Disuanco) of the Criminal Investigation Division of the Central Police District Command; and Epifanio
Deriquito (Deriquito), Records Verifier of the Firearms and Explosives Division in Camp Crame. Their
testimonies are summarized as follows:
On July 10, 1996, at around 9:30 a.m., Disuanco received a Dispatch Order from the desk officer directing him
and three (3) other policemen to serve a Warrant of Arrest, issued by Judge Ignacio Salvador, against Valeroso
for a case of kidnapping with ransom.6
After a briefing, the team conducted the necessary surveillance on Valeroso checking his hideouts in Cavite,
Caloocan, and Bulacan. Eventually, the team members proceeded to the Integrated National Police (INP)
Central Police Station in Culiat, Quezon City, where they saw Valeroso about to board a tricyle. Disuanco and
his team approached Valeroso. They put him under arrest, informed him of his constitutional rights, and bodily
searched him. They found a Charter Arms revolver, bearing Serial No. 52315, with five (5) pieces of live
ammunition, tucked in his waist.7

Valeroso was then brought to the police station for questioning. Upon verification in the Firearms and
Explosives Division in Camp Crame, Deriquito presented a certification8 that the subject firearm was not issued
to Valeroso, but was licensed in the name of a certain Raul Palencia Salvatierra of Sampaloc, Manila.9
On the other hand, Valeroso, SPO3 Agustin R. Timbol, Jr. (Timbol), and Adrian Yuson testified for the defense.
Their testimonies are summarized as follows:
On July 10, 1996, Valeroso was sleeping inside a room in the boarding house of his children located at Sagana
Homes, Barangay New Era, Quezon City. He was awakened by four (4) heavily armed men in civilian attire
who pointed their guns at him and pulled him out of the room.10 The raiding team tied his hands and placed him
near the faucet (outside the room) then went back inside, searched and ransacked the room. Moments later,
an operative came out of the room and exclaimed, "Hoy, may nakuha akong baril sa loob!"11
Disuanco informed Valeroso that there was a standing warrant for his arrest. However, the raiding team was
not armed with a search warrant.12
Timbol testified that he issued to Valeroso a Memorandum Receipt13 dated July 1, 1993 covering the subject
firearm and its ammunition, upon the verbal instruction of Col. Angelito Moreno.14
On May 6, 1998, the Regional Trial Court (RTC), Branch 97, Quezon City, convicted Valeroso as charged and
sentenced him to suffer the indeterminate penalty of four (4) years, two (2) months and one (1) day, as
minimum, to six (6) years, as maximum. The gun subject of the case was further ordered confiscated in favor
of the government.15
On appeal, the Court of Appeals (CA) affirmed16 the RTC decision but the minimum term of the indeterminate
penalty was lowered to four (4) years and two (2) months.
On petition for review, we affirmed17 in full the CA decision. Valeroso filed a Motion for Reconsideration18 which
was denied with finality19 on June 30, 2008.
Valeroso is again before us through this Letter-Appeal20 imploring this Court to once more take a contemplative
reflection and deliberation on the case, focusing on his breached constitutional rights against unreasonable
search and seizure.21
Meanwhile, as the Office of the Solicitor General (OSG) failed to timely file its Comment on Valerosos Motion
for Reconsideration, it instead filed a Manifestation in Lieu of Comment.22
In its Manifestation, the OSG changed its previous position and now recommends Valerosos acquittal. After a
second look at the evidence presented, the OSG considers the testimonies of the witnesses for the defense
more credible and thus concludes that Valeroso was arrested in a boarding house. More importantly, the OSG
agrees with Valeroso that the subject firearm was obtained by the police officers in violation of Valerosos
constitutional right against illegal search and seizure, and should thus be excluded from the evidence for the
prosecution. Lastly, assuming that the subject firearm was admissible in evidence, still, Valeroso could not be
convicted of the crime, since he was able to establish his authority to possess the gun through the
Memorandum Receipt issued by his superiors.
After considering anew Valerosos arguments through his Letter-Appeal, together with the OSGs position
recommending his acquittal, and keeping in mind that substantial rights must ultimately reign supreme over
technicalities, this Court is swayed to reconsider.23
The Letter-Appeal is actually in the nature of a second motion for reconsideration. While a second motion for
reconsideration is, as a general rule, a prohibited pleading, it is within the sound discretion of the Court to
admit the same, provided it is filed with prior leave whenever substantive justice may be better served
thereby.24

This is not the first time that this Court is suspending its own rules or excepting a particular case from the
operation of the rules. In De Guzman v. Sandiganbayan,25 despite the denial of De Guzmans motion for
reconsideration, we still entertained his Omnibus Motion, which was actually a second motion for
reconsideration. Eventually, we reconsidered our earlier decision and remanded the case to the
Sandiganbayan for reception and appreciation of petitioners evidence. In that case, we said that if we would
not compassionately bend backwards and flex technicalities, petitioner would surely experience the disgrace
and misery of incarceration for a crime which he might not have committed after all.26 Also in Astorga v.
People,27 on a second motion for reconsideration, we set aside our earlier decision, re-examined the records of
the case, then finally acquitted Benito Astorga of the crime of Arbitrary Detention on the ground of reasonable
doubt. And in Sta. Rosa Realty Development Corporation v. Amante,28 by virtue of the January 13, 2004 En
Banc Resolution, the Court authorized the Special First Division to suspend the Rules, so as to allow it to
consider and resolve respondents second motion for reconsideration after the motion was heard on oral
arguments. After a re-examination of the merits of the case, we granted the second motion for reconsideration
and set aside our earlier decision.
Clearly, suspension of the rules of procedure, to pave the way for the re-examination of the findings of fact and
conclusions of law earlier made, is not without basis.
We would like to stress that rules of procedure are merely tools designed to facilitate the attainment of justice.
They are conceived and promulgated to effectively aid the courts in the dispensation of justice. Courts are not
slaves to or robots of technical rules, shorn of judicial discretion. In rendering justice, courts have always been,
as they ought to be, conscientiously guided by the norm that, on the balance, technicalities take a backseat to
substantive rights, and not the other way around. Thus, if the application of the Rules would tend to frustrate
rather than to promote justice, it would always be within our power to suspend the rules or except a particular
case from its operation.29
Now on the substantive aspect.
The Court notes that the version of the prosecution, as to where Valeroso was arrested, is different from the
version of the defense. The prosecution claims that Valeroso was arrested near the INP Central Police Station
in Culiat, Quezon City, while he was about to board a tricycle. After placing Valeroso under arrest, the arresting
officers bodily searched him, and they found the subject firearm and ammunition. The defense, on the other
hand, insists that he was arrested inside the boarding house of his children. After serving the warrant of arrest
(allegedly for kidnapping with ransom), some of the police officers searched the boarding house and forcibly
opened a cabinet where they discovered the subject firearm.
After a thorough re-examination of the records and consideration of the joint appeal for acquittal by Valeroso
and the OSG, we find that we must give more credence to the version of the defense.
Valerosos appeal for acquittal focuses on his constitutional right against unreasonable search and seizure
alleged to have been violated by the arresting police officers; and if so, would render the confiscated firearm
and ammunition inadmissible in evidence against him.
The right against unreasonable searches and seizures is secured by Section 2, Article III of the Constitution
which states:
SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.
From this constitutional provision, it can readily be gleaned that, as a general rule, the procurement of a
warrant is required before a law enforcer can validly search or seize the person, house, papers, or effects of
any individual.30

To underscore the significance the law attaches to the fundamental right of an individual against unreasonable
searches and seizures, the Constitution succinctly declares in Article III, Section 3(2), that "any evidence
obtained in violation of this or the preceding section shall be inadmissible in evidence for any purpose in any
proceeding."31
The above proscription is not, however, absolute. The following are the well-recognized instances where
searches and seizures are allowed even without a valid warrant:
1. Warrantless search incidental to a lawful arrest;
2. [Seizure] of evidence in "plain view." The elements are: a) a prior valid intrusion based on the valid
warrantless arrest in which the police are legally present in the pursuit of their official duties; b) the
evidence was inadvertently discovered by the police who have the right to be where they are; c) the
evidence must be immediately apparent; and d) "plain view" justified mere seizure of evidence without
further search;
3. Search of a moving vehicle. Highly regulated by the government, the vehicles inherent mobility
reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly
reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;
4. Consented warrantless search;
5. Customs search;
6. Stop and Frisk;
7. Exigent and emergency circumstances.32
8. Search of vessels and aircraft; [and]
9. Inspection of buildings and other premises for the enforcement of fire, sanitary and building
regulations.33
In the exceptional instances where a warrant is not necessary to effect a valid search or seizure, what
constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinable from the
uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or
absence of probable cause, the manner in which the search and seizure was made, the place or thing
searched, and the character of the articles procured.34
In light of the enumerated exceptions, and applying the test of reasonableness laid down above, is the
warrantless search and seizure of the firearm and ammunition valid?
We answer in the negative.
For one, the warrantless search could not be justified as an incident to a lawful arrest. Searches and seizures
incident to lawful arrests are governed by Section 13, Rule 126 of the Rules of Court, which reads:
SEC. 13. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous
weapons or anything which may have been used or constitute proof in the commission of an offense without a
search warrant.
We would like to stress that the scope of the warrantless search is not without limitations. In People v.
Leangsiri,35People v. Cubcubin, Jr.,36 and People v. Estella,37 we had the occasion to lay down the parameters
of a valid warrantless search and seizure as an incident to a lawful arrest.

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to
remove any weapon that the latter might use in order to resist arrest or effect his escape. Otherwise, the
officers safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for
the arresting officer to search for and seize any evidence on the arrestees person in order to prevent its
concealment or destruction.38
Moreover, in lawful arrests, it becomes both the duty and the right of the apprehending officers to conduct a
warrantless search not only on the person of the suspect, but also in the permissible area within the latters
reach.39 Otherwise stated, a valid arrest allows the seizure of evidence or dangerous weapons either on the
person of the one arrested or within the area of his immediate control.40 The phrase "within the area of his
immediate control" means the area from within which he might gain possession of a weapon or destructible
evidence.41 A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting
officer as one concealed in the clothing of the person arrested.42
In the present case, Valeroso was arrested by virtue of a warrant of arrest allegedly for kidnapping with
ransom. At that time, Valeroso was sleeping inside the boarding house of his children. He was awakened by
the arresting officers who were heavily armed. They pulled him out of the room, placed him beside the faucet
outside the room, tied his hands, and then put him under the care of Disuanco.43 The other police officers
remained inside the room and ransacked the locked cabinet44 where they found the subject firearm and
ammunition.45 With such discovery, Valeroso was charged with illegal possession of firearm and ammunition.
From the foregoing narration of facts, we can readily conclude that the arresting officers served the warrant of
arrest without any resistance from Valeroso. They placed him immediately under their control by pulling him out
of the bed, and bringing him out of the room with his hands tied. To be sure, the cabinet which, according to
Valeroso, was locked, could no longer be considered as an "area within his immediate control" because there
was no way for him to take any weapon or to destroy any evidence that could be used against him.
The arresting officers would have been justified in searching the person of Valeroso, as well as the tables or
drawers in front of him, for any concealed weapon that might be used against the former. But under the
circumstances obtaining, there was no comparable justification to search through all the desk drawers and
cabinets or the other closed or concealed areas in that room itself.46
It is worthy to note that the purpose of the exception (warrantless search as an incident to a lawful arrest) is to
protect the arresting officer from being harmed by the person arrested, who might be armed with a concealed
weapon, and to prevent the latter from destroying evidence within reach. The exception, therefore, should not
be strained beyond what is needed to serve its purpose.47 In the case before us, search was made in the
locked cabinet which cannot be said to have been within Valerosos immediate control. Thus, the search
exceeded the bounds of what may be considered as an incident to a lawful arrest.48
Nor can the warrantless search in this case be justified under the "plain view doctrine."
The "plain view doctrine" may not be used to launch unbridled searches and indiscriminate seizures or to
extend a general exploratory search made solely to find evidence of defendants guilt. The doctrine is usually
applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently
comes across an incriminating object.49
As enunciated in People v. Cubcubin, Jr.50 and People v. Leangsiri:51
What the "plain view" cases have in common is that the police officer in each of them had a prior justification
for an intrusion in the course of which[,] he came inadvertently across a piece of evidence incriminating the
accused. The doctrine serves to supplement the prior justification whether it be a warrant for another object,
hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected
with a search directed against the accused and permits the warrantless seizure. Of course, the extension of
the original justification is legitimate only where it is immediately apparent to the police that they have evidence

before them; the "plain view" doctrine may not be used to extend a general exploratory search from one object
to another until something incriminating at last emerges.52
Indeed, the police officers were inside the boarding house of Valerosos children, because they were supposed
to serve a warrant of arrest issued against Valeroso. In other words, the police officers had a prior justification
for the intrusion. Consequently, any evidence that they would inadvertently discover may be used against
Valeroso. However, in this case, the police officers did not just accidentally discover the subject firearm and
ammunition; they actually searched for evidence against Valeroso.
Clearly, the search made was illegal, a violation of Valerosos right against unreasonable search and seizure.
Consequently, the evidence obtained in violation of said right is inadmissible in evidence against him.1avvphi1
Unreasonable searches and seizures are the menace against which the constitutional guarantees afford full
protection. While the power to search and seize may at times be necessary for public welfare, still it may be
exercised and the law enforced without transgressing the constitutional rights of the citizens, for no
enforcement of any statute is of sufficient importance to justify indifference to the basic principles of
government. Those who are supposed to enforce the law are not justified in disregarding the rights of an
individual in the name of order. Order is too high a price to pay for the loss of liberty.53
Because a warrantless search is in derogation of a constitutional right, peace officers who conduct it cannot
invoke regularity in the performance of official functions.54
The Bill of Rights is the bedrock of constitutional government. If people are stripped naked of their rights as
human beings, democracy cannot survive and government becomes meaningless. This explains why the Bill of
Rights, contained as it is in Article III of the Constitution, occupies a position of primacy in the fundamental law
way above the articles on governmental power.55
Without the illegally seized firearm, Valerosos conviction cannot stand. There is simply no sufficient evidence
to convict him.56 All told, the guilt of Valeroso was not proven beyond reasonable doubt measured by the
required moral certainty for conviction. The evidence presented by the prosecution was not enough to
overcome the presumption of innocence as constitutionally ordained. Indeed, it would be better to set free ten
men who might probably be guilty of the crime charged than to convict one innocent man for a crime he did not
commit.57
With the foregoing disquisition, there is no more need to discuss the other issues raised by Valeroso.
One final note. The Court values liberty and will always insist on the observance of basic constitutional rights
as a condition sine qua non against the awesome investigative and prosecutory powers of the government.58
WHEREFORE, in view of the foregoing, the February 22, 2008 Decision and June 30, 2008 Resolution are
RECONSIDERED and SET ASIDE. Sr. Insp. Jerry Valeroso is hereby ACQUITTED of illegal possession of
firearm and ammunition.
SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
MINITA V. CHICO-NAZARIO
PRESBITERO J.VELASCO, JR.
Associate Justice
Associate Justice

DIOSDADO M. PERALTA
Associate Justice
AT T E S TAT I O N
I attest that the conclusions in the above Resolution were reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that
the conclusions in the above Resolution had been reached in consultation before the case was assigned to the
writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 104528

January 18, 1996

PHILIPPINE NATIONAL BANK, petitioner,

vs.
OFFICE OF THE PRESIDENT, HOUSING AND LAND USE REGULATORY BOARD, ALFONSO MAGLAYA,
ANGELINA MAGLAYA P. REYES, JORGE C. BERNARDINO, CORAZON DE LEON, VICTORIANO ACAYA,
FLORENCIA CULTURA, MARIA CAMPOS, ERNESTO SARMIENTO SANTIAGO TAMONAN, APOLONIA
TADIAQUE, SIMEON DE LEON, NATIVIDAD J. CRUZ, NATIVIDAD B. LORESCO, FELICIDAD GARCIA,
ANA ANITA TAN, LUCAS SERVILLION, JOSE NARAWAL, represented by their duly authorized Attorneyin-Fact, CORAZON DE LEON AND SPOUSES LEOPOLDO AND CARMEN SEBASTIAN, respondents.
RESOLUTION
PANGANIBAN, J.:
May a buyer of a property at a foreclosure sale dispossess prior purchasers on installment of individual lots
therein, or compel them to pay again for the lots which they previously bought from the defaulting mortgagorsubdivision developer, on the theory that P.D. 957, "The Subdivision and Condominium Buyers' Protective
Decree", is not applicable to the mortgage contract in question, the same having been executed prior to the
enactment of P.D. 957? This is the question confronting the Court in this Petition challenging the Decision
dated March 10, 1992 of the Office of the President of the Philippines in O.P. Case No. 4249, signed by the
Executive Secretary, Franklin M. Drilon, "by authority of the President."
Private respondents were buyers on installment of subdivision lots from Marikina Village, Inc. (represented by
spouses Antonio and Susana Astudillo). Notwithstanding the land purchase agreements it executed over said
lots, the subdivision developer mortgaged the lots in favor of the petitioner, Philippine National Bank. Unaware
of this mortgage, private respondents duly complied with their obligations as lot buyers and constructed their
houses on the lots in question.
Subsequently, the subdivision developer defaulted and PNB foreclosed on the mortgage. As highest bidder at
the foreclosure sale, the bank became owner of the lots.
Acting on suits brought by private respondents (which were later consolidated), the HLURB Office of Appeals,
Adjudication and Legal Affairs (OAALA) in a decision rendered on October 28, 1988 ruled that PNB - without
prejudice to seeking relief against Marikina Village, Inc. - may collect from private respondents only the
"remaining amortizations, in accordance with the land purchase agreements they had previously entered into
with" Marikina Village, Inc., and cannot compel private respondents to pay all over again for the lots they had
already bought from said subdivision developer. On May 2, 1989, the Housing and Land Use Regulatory Board
affirmed this decision. On March 10, 1992, the Office of the President, invoking P.D. 957, likewise concurred
with the HLURB. Hence, the present recourse to this Court.
Under Revised Administrative Circular No. 1-95, "appeals from judgments or final orders of the . . . Office of the
President . . . may be taken to the Court of Appeals . . ." However, in order to hasten the resolution of this case,

which was deemed submitted for decision three years ago, the Court resolved to make an exception to the
said Circular in the interest of speedy justice.
Petitioner bank raised the following issues:
1. The Office of the President erred in applying P.D. 957 because said law was enacted only on July 12,
1976, while the subject mortgage was executed on December 18, 1975; and
2. Petitioner Bank is not privy to the contracts between private respondents and mortgagor-subdivision
developer, hence, the Office of the President erred in ordering petitioner Bank to accept private
respondents' remaining amortizations and issue the corresponding titles after payment thereof.
Normally, pursuant to Article 4 of the Civil Code, "(l)aws shall have no retroactive effect, unless the contrary is
provided." However, it is obvious and indubitable that P.D. 957 was intended to cover even those real estate
mortgages, like the one at issue here, executed prior to its enactment, and such intent (as succinctly captured
in the preamble quoted below) must be given effect if the laudable purpose of protecting innocent purchasers
is to be achieve:
WHEREAS, it is the policy of the State to afford its inhabitants the requirements of decent human
settlement and to provide them with ample opportunities for improving their quality of life;
WHEREAS, numerous reports reveal that many real estate subdivision owners, developers, operators,
and/or sellers have reneged on their representations and, obligations to provide and maintain properly
subdivision roads, drainage, sewerage, water systems, lighting systems, and other similar basic
requirements, thus endangering the health and safety of home and lot buyers;
WHEREAS, reports of alarming magnitude also show cases of swindling and fraudulent manipulations
perpetrated by unscrupulous subdivision and condominium sellers and operators, such as failure to
deliver titles to the buyers or titles free from liens and encumbrances, and to pay real estate taxes, and
fraudulent sales of the same subdivision lots to different innocent purchasers for value;1 (Emphasis
supplied).
While P.D. 957 did not expressly provide for retroactivity in its entirety, yet the same can be plainly inferred
from the unmistakable intent of the law to protect innocent lot buyers from scheming subdivision developers.
As between these small lot buyers and the gigantic financial institutions which the developers deal with, it is
obvious that the law - as an instrument of social justice - must favors the weak. Indeed, the petitioner Bank had
at its disposal vast resources with which it could adequately protect its loan activities, and therefore is
presumed to have conducted the usual "due diligence" checking and ascertained (whether thru ocular
inspection or other modes of investigation) the actual status, condition, utilization and occupancy of the
property offered as collateral. It could not have been unaware that the property had been built on by small lot
buyers. On the other hand, private respondents obviously were powerless to discover the attempt of the land
developer to hypothecate the property being sold to them. It was precisely in order to deal with this kind of
situation that P.D. 957 was enacted, its very essence and intendment being to provide a protective mantle over
helpless citizens who may fall prey to the razzmatazz of what P.D. 957 termed "unscrupulous subdivision and
condominium sellers."
The intent of the law, as culled from its preamble and from the situation, circumstances and condition it sought
to remedy, must be enforced. Sutherland, in his well-known treatise on Statutory Construction (quoted with
approval by this Court in an old case of consequence, Ongsiako vs. Gamboa2 ), says:
The intent of a statute is the law. If a statute is valid it is to have effect according to the purpose and
intent of the lawmaker. The intent is the vital part, the essence of the law, and the primary rule of

construction is to ascertain and give effect to the intent. The intention of the legislature in enacting a law
is the law itself, and must be enforced when ascertained, although it may not be consistent with the
strict letter of the statute. Courts will not follow the letter of a statute when it leads away from the true
intent and purpose of the legislature and to conclusions inconsistent with the general purpose of the
act. Intent is the spirit which gives life to a legislative enactment. In construing statutes the proper
course is to start out and follow the true intent of the legislature and to adopt that sense which
harmonizes best with the context and promotes in the fullest manner the apparent policy and objects of
the legislature.3
Truly, this Court cannot allow the injustice that will be wrought by a strictly prospective application of the law.
Little people who have toiled for years through blood and tears would be deprived of their homes through no
fault of their own. As the Solicitor General, in his comment, argues:
Verily, if P.D. 957 were to exclude from its coverage the aforecited mortgage contract, the vigorous
regulation which P.D. 957 seeks to impose on unconscientious subdivision sellers will be translated into
a feeble exercise of police power just because the iron hand of the State cannot particularly touch
mortgage contracts badged with the fortunate accident of having been constituted prior to the
enactment of P.D. 957. Indeed, it would be illogical in the extreme if P.D. 957 is to be given full force
and effect and yet, the fraudulent practices and manipulations it seeks to curb in the first instance can
nevertheless be liberally perpetrated precisely because P.D. 957 cannot be applied to existing
antecedent mortgage contracts. The legislative intent could not have conceivably permitted a loophole
which all along works to the prejudice of subdivision lot buyers (private respondents).4
Likewise noteworthy are certain provisions of P.D. 957, which themselves constitute strong arguments in favor
of the retroactivity of P.D. 957 as a whole. These are Sections 20, 2l and 23 thereof, which by their very terms
have retroactive effect and will impact upon even those contracts and transactions entered into prior to P.D.
957's enactment:
Sec. 20. Time of Completion. - Every owner or developer or shall construct and provide the facilities,
improvements, infrastructures and other forms of development, including water supply and lighting
facilities, which are offered and indicated in the approved subdivision or condominiun plans, brochures,
prospectus, printed matters, letters or in any form of advertisement, within one year from the date of the
issuance of the license for the subdivision or condominium project or such other period of time as may
be fixed by the Authority.
Sec. 21. Sales Prior to Decree. - In cases of subdivision lots or condominium units sold or disposed of
prior to the effectivity of this Decree, it shall be incumbent upon the owner or developer of the
subdivision or condominium project to complete compliance with his or its obligations as provided in the
preceding section within two years from the date of this Decree unless otherwise extended by the
Authority or unless an adequate performance bond is filed in accordance with Section 6 hereof.
Failure of the owner or developer to comply with the obligations under this and the preceding provisions
shall constitute a violation punishable under Section 38 and 39 of this Decree.
Sec. 23. Non-Forfeiture of Payments. - No installment payment made by a buyer in a subdivision or
condominium project for, the lot or unit he contracted to buy shall be forfeited in favor, of the owner or
developer when the buyer, after, due notice to the owner or developer, desist from further payment due
to the failure of the owner or developer to develop the subdivision or condominium project according to
the approved plans and within the time limit for complying with the same. Such buyer may, at this
option, be reimbursed the total amount paid including amortization interests but excluding delinquency
interests, with interest thereon at the legal rate. (emphasis supplied)

As for objections about a possible violation of the impairment clause, we find the following statements of
Justice Isagani Cruz enlightening and pertinent to the case at bench:
Despite the impairment clause, a contract valid at the time of its execution may be legally modified or
even completely invalidated by a subsequent law. If the law is a proper exercise of the police power, it
will prevail over the contract.
Into each contract are read the provisions of existing law and, always, a reservation of the police power
as long as the agreement deals with a matter, affecting the public welfare. Such a contract, it has been
held, suffers a congenital infirmity, and this is its susceptibility to change by the legislature as a
postulate of the legal order.5
This Court ruled along similar lines in Juarez vs. Court of Appeals6 :
The petitioner complains that the retroactive application of the law would violate the impairment clause.
The argument does not impress. The impairment clause is now no longer inviolate; in fact, there are
many who now believe it, is an anachronism in the present-day society. It was quite useful before in
protecting the integrity of private agreements from government meddling, but that was when such
agreements did not affect the community in general. They were indeed purely private agreements then.
Any interference with them at that time was really an unwarranted intrusion that could properly struck
down.
But things are different now. More and more, the interests of the public have become involved in what
are supposed to be still private agreements, which have, as a result been removed from the protection
of the impairment clause. These agreements have come within the embrace of the police power, that
obtrusive protector of the public interest. It is a ubiquitous policeman indeed. As long as the contract
affects the public welfare one way or another so as to require the interference of the State, then must
the police power be asserted, and prevail, over the clause.
The decision of the Court of Appeals in Breta and Hamor vs. Lao, et al.7 penned by then Court of Appeals
Associate Justice Jose A. R. Melo, now a respected member of this Court, is persuasive, the factual
circumstances therein being of great similarity to the antecedent facts of the case at bench:
Protection must be afforded small homeowners who toil and save if only to purchase on installment a
tiny home lot they can call their own. The consuming dream of every Filipino is to be able to buy a lot,
no matter how small, so that he may somehow build a house. It has, however, been seen of late that
these honest, hard-living individuals are taken advantage of, with the delivery of titles delayed, the
subdivision facilities, including the most essential such as water installations not completed, or worse
yet, as in the instant case, after almost completing the payments for the property and after constructing
a house, the buyer is suddenly confronted by the stark reality, contrived or otherwise, in which another
person would now appear to be owner.
xxx

xxx

xxx

We cannot over emphasize the fact that the BANK cannot barefacedly argue that simply because the
title or titles offered as security were clean of any encumbrance or lien, that it was thereby relieved of
taking any other step to verify the over-reaching implications should the subdivision be auctioned on
foreclosure. The BANK could not have closed its eyes that it was dealing over a subdivision where
there were already houses constructed. Did it not enter the mind of the responsible officers of the
BANK that there may even be subdivision residents who have almost completed their installment
payments? (id., pp. 7 & 9).

By the foregoing citation, this Court, thus adopts by reference the foregoing as part of this Decision.
The real estate mortgage in the above cited case, although constituted in 1975 and outside the beneficial aegis
of P.D. 957, was struck down by the Court of Appeals which found in favor of subdivision lot buyers when the
rights of the latter clashed with the mortgagee bank's right to foreclose the property. The Court of Appeals in
that case upheld the decision of the trial court declaring the real estate mortgage as null and void.
As to the second issue of non-privity, petitioner avers that, in view of the provisions of Article 1311 of the Civil
Code, PNB, being a "total stranger to the land purchase agreement," cannot be made to take the developer's
place.
We disagree, P.D. 957 being applicable, Section 18 of said law obliges petitioner Bank to accept the payment
of the remaining unpaid amortizations tendered by private respondents.
Sec. 18. Mortgages. - No mortgage on any unit or lot shall be made by the owner or developer without
prior written approval of the Authority, Such approval shall not be granted unless it is shown that the
proceeds of the mortgage loan shall be used for the development of the condominium or subdivision
project and effective measures have been provided to ensure such utilization. The loan value of each
lot or unit covered by the mortgage shall be determined and the buyer thereof, if any, shall be notified
before the release of the loan. The buyer may, at his option, pay his installment for the lot or unit
directly to the mortgagee who shall apply the payments to the corresponding mortgage indebtedness
secured by the particular lot or unit being paid for, with a view to enabling said buyer to obtain title over
the lot or unit promptly after full payment thereof. (emphasis supplied)
Privity of contracts as a defense does not apply in this case for the law explicitly grants to the buyer the option
to pay the installment payment for his lot or unit directly to the mortgagee (petitioner), which is required to
apply such payments to reduce the corresponding portion of the mortgage indebtedness secured by the
particular lot or unit being paid for. And, as stated earlier, this is without prejudice to petitioner Bank's seeking
relief against the subdivision developer.
Finally, before closing this Resolution, we enjoin petitioner Bank to focus not only on the strictly legal issues
involved in this case but also to take another look at the larger issues including social justice and the protection
of human rights as enshrined in the Constitution; firstly, because legal issues are raised and decided not in a
vacuum but within the context of existing social, economic and political conditions, law being merely a brick in
the up- building of the social edifice; and secondly, petitioner, being THE state bank, is for all intents and
purposes an instrument for the implementation of state policies so cherished in our fundamental law. These
consideration are obviously far more weighty than the winning of any particular suit or the acquisition of any
specific property. Thus, as the country strives to move ahead towards economic self-sufficiency and to achieve
dreams of "NIC-hood" and social well-being for the majority of our countrymen, we hold that petitioner Bank,
the premier bank in the country, which has in recent years made record earnings and acquired an enviable
international stature, with branches and subsidiaries in key financial centers around the world, should be
equally as happy with the disposition of this case as the private respondents, who were almost deprived and
dispossessed of their very homes purchased through their hard work and with their meager savings.
WHEREFORE, in view of the foregoing considerations, the petition is hereby DENIED, petitioner having failed
to show any REVERSIBLE ERROR or GRAVE ABUSE OF DISCRETION in the assailed decision. No costs.
SO ORDERED.
Narvasa, C.J., Davide Jr., Melo and Francisco, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-52306 October 12, 1981
ABS-CBN BROADCASTING CORPORATION, petitioner,
vs.
COURT OF TAX APPEALS and THE COMMISSIONER OF INTERNAL REVENUE, respondents.

MELENCIO-HERRERA, J.:
This is a Petition for Review on certiorari of the Decision of the Court of Tax Appeals in C.T.A. Case No. 2809,
dated November 29, 1979, which affirmed the assessment by the Commissioner of Internal Revenue, dated
April 16, 1971, of a deficiency withholding income tax against petitioner, ABS-CBN Broadcasting Corporation,
for the years 1965, 1966, 1967 and 1968 in the respective amounts of P75,895.24, P99,239.18, P128,502.00
and P222, 260.64, or a total of P525,897.06.
During the period pertinent to this case, petitioner corporation was engaged in the business of telecasting local
as well as foreign films acquired from foreign corporations not engaged in trade or business within the
Philippines. for which petitioner paid rentals after withholding income tax of 30%of one-half of the film rentals.
In so far as the income tax on non-resident corporations is concerned, section 24 (b) of the National Internal
Revenue Code, as amended by Republic Act No. 2343 dated June 20, 1959, used to provide:
(b) Tax on foreign corporations.(1) Non-resident corporations. There shall be levied,
collected, and paid for each taxable year, in lieu of the tax imposed by the preceding paragraph,
upon the amount received by every foreign corporation not engaged in trade or business within
the Philippines, from an sources within the Philippines, as interest, dividends, rents, salaries,
wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or
determinable annual or periodical gains, profits, and income, a tax equal to thirty per centum of
such amount. (Emphasis supplied)

On April 12, 1961, in implementation of the aforequoted provision, the Commissioner of Internal Revenue
issued General Circular No. V-334 reading thus:
In connection with Section 24 (b) of Tax Code, the amendment introduced by Republic Act No.
2343, under which an income tax equal to 30% is levied upon the amount received by every
foreign corporation not engaged in trade or business within the Philippines from all sources
within this country as interest, dividends, rents, salaries, wages, premiums, annuities,
compensations, remunerations, emoluments, or other fixed or determinable annual or periodical
gains, profits, and income, it has been determined that the tax is still imposed on income
derived from capital, or labor, or both combined, in accordance with the basic principle of
income taxation (Sec. 39, Income Tax Regulations), and that a mere return of capital or
investment is not income (Par. 5,06, 1 Mertens Law of Federal 'Taxation). Since according to the
findings of the Special Team who inquired into business of the non-resident foreign film
distributors, the distribution or exhibition right on a film is invariably acquired for a consideration,
either for a lump sum or a percentage of the film rentals, whether from a parent company or an
independent outside producer, apart of the receipts of a non-resident foreign film distributor
derived from said film represents, therefore, a return of investment.
xxx xxx xxx
4. The local distributor should withhold 30% of one-half of the film rentals paid to the nonresident foreign film distributor and pay the same to this office in accordance with law unless the
non- resident foreign film distributor makes a prior settlement of its income tax liability.
(Emphasis ours).
Pursuant to the foregoing, petitioner dutifully withheld and turned over to the Bureau of Internal Revenue the
amount of 30% of one-half of the film rentals paid by it to foreign corporations not engaged in trade or business
within the Philippines. The last year that petitioner withheld taxes pursuant to the foregoing Circular was in
1968.
On June 27, 1968, Republic Act No. 5431 amended Section 24 (b) of the Tax Code increasing the tax rate from
30 % to 35 % and revising the tax basis from "such amount" referring to rents, etc. to "gross income," as
follows:
(b) Tax on foreign corporations.(1) Non-resident corporations.A foreign corporation not
engaged in trade or business in the Philippines including a foreign life insurance company not
engaged in the life insurance business in the Philippines shall pay a tax equal to thirty-five per
cent of the gross income received during each taxable year from all sources within the
Philippines, as interests, dividends, rents, royalties, salaries, wages, premiums, annuities,
compensations, remunerations for technical services or otherwise, emoluments or other fixed or
determinable annual, periodical or casual gains, profits, and income, and capital
gains, Provided however, That premiums shah not include reinsurance premiums. (Emphasis
supplied)
On February 8, 1971, the Commissioner of Internal Revenue issued Revenue Memorandum Circular No. 4-71,
revoking General Circular No. V-334, and holding that the latter was "erroneous for lack of legal basis,"
because "the tax therein prescribed should be based on gross income without deduction whatever," thus:
After a restudy and analysis of Section 24 (b) of the National Internal Revenue Code, as
amended by Republic Act No. 5431, and guided by the interpretation given by tax authorities to
a similar provision in the Internal Revenue Code of the United States, on which the
aforementioned provision of our Tax Code was patterned, this Office has come to the conclusion
that the tax therein prescribed should be based on gross income without t deduction whatever.
Consequently, the ruling in General Circular No. V-334, dated April 12, 1961, allowing the
deduction of the proportionate cost of production or exhibition of motion picture films from the
rental income of non- resident foreign corporations, is erroneous for lack of legal basis.

In view thereof, General Circular No. V-334, dated April 12, 1961, is hereby revoked and
henceforth, local films distributors and exhibitors shall deduct and withhold 35% of the entire
amount payable by them to non-resident foreign corporations, as film rental or royalty, or
whatever such payment may be denominated, without any deduction whatever, pursuant to
Section 24 (b), and pay the withheld taxes in accordance with Section 54 of the Tax Code, as
amended.
All rulings inconsistent with this Circular is likewise revoked. (Emphasis ours)
On the basis of this new Circular, respondent Commissioner of Internal Revenue issued against petitioner a
letter of assessment and demand dated April 15, 1971, but allegedly released by it and received by petitioner
on April 12, 1971, requiring them to pay deficiency withholding income tax on the remitted film rentals for the
years 1965 through 1968 and film royalty as of the end of 1968 in the total amount of P525,897.06 computed
as follows:
1965
Total amount remitted

P 511,059.48

Withholding tax due

thereon

153,318.00

Less: Amount already

assessed

89,000.00

Balance

P64,318.00

Add: 1/2% mo. int. fr. 416-66 to 4-16-69

11,577.24

Total amount due &

collectible

P 75,895.24

1966
Total amount remitted

P373,492.24

Withholding tax due

thereon

112,048.00

Less: Amount already

assessed

27,947.00

Balance

84,101.00

Add: 11/2%mo. int. fr.

15,138.18

4-16-67 to 4-116-70
Total amount due &
collectible

P99,239.18

1967
Total amount
remitted

P601,160.65

Withholding tax
due thereon

180,348.00

Less: Amount
already assessed

71,448.00

Balance

108,900.00

Add: 1/2% mo.

int. fr. 4-16-68 to
4-16-71

19,602.00

Total amount due

& collectible

P128,502.00

1968
Total amount
remitted

P881,816.92

Withholding tax due

thereon

291,283.00

Less: Amount
already assessed

92,886.00

Balance

P198,447.00

Add: 1/2% mo. int.

fr. 4-16-69 to 4-2971

23,813.64

Total amount due &

collectible

P222,260.44 1

On May 5, 1971, petitioner requested for a reconsideration and withdrawal of the assessment. However,
without acting thereon, respondent, on April 6, 1976, issued a warrant of distraint and levy over petitioner's
personal as well as real properties. The petitioner then filed its Petition for Review with the Court of Tax
Appeals whose Decision, dated November 29, 1979, is, in turn, the subject of this review. The Tax Court held:
For the reasons given, the Court finds the assessment issued by respondent on April 16, 1971
against petitioner in the amounts of P75,895.24, P 99,239.18, P128,502.00 and P222,260.64 or
a total of P525,897.06 as deficiency withholding income tax for the years 1965, 1966, 1967 and
1968, respectively, in accordance with law. As prayed for, the petition for review filed in this case
is dismissed, and petitioner ABS-CBN Broadcasting Corporation is hereby ordered to pay the
sum of P525,897.06 to respondent Commissioner of Internal Revenue as deficiency withholding
income tax for the taxable years 1965 thru 1968, plus the surcharge and interest which have
accrued thereon incident to delinquency pursuant to Section 51 (e) of the National Internal
Revenue Code, as amended.
WHEREFORE, the decision appealed from is hereby affirmed at petitioner's cost.
SO ORDERED. 2
The issues raised are two-fold:
I. Whether or not respondent can apply General Circular No. 4-71 retroactively and issue a
deficiency assessment against petitioner in the amount of P 525,897.06 as deficiency
withholding income tax for the years 1965, 1966, 1967 and 1968.
II. Whether or not the right of the Commissioner of Internal Revenue to assess the deficiency
withholding income tax for the year 196,5 has prescribed. 3
Upon the facts and circumstances of the case, review is warranted.
In point is Sec. 338-A (now Sec. 327) of the Tax Code. As inserted by Republic Act No. 6110 on August 9,
1969, it provides:
Sec. 338-A. Non-retroactivity of rulings. Any revocation, modification, or reversal of and of the
rules and regulations promulgated in accordance with the preceding section or any of the rulings
or circulars promulgated by the Commissioner of Internal Revenue shall not be given retroactive
application if the relocation, modification, or reversal will be prejudicial to the taxpayers, except
in the following cases: (a) where the taxpayer deliberately mis-states or omits material facts
from his return or any document required of him by the Bureau of Internal Revenue: (b) where
the facts subsequently gathered by the Bureau of Internal Revenue are materially different from
the facts on which the ruling is based; or (c) where the taxpayer acted in bad faith. (italics for
emphasis)
It is clear from the foregoing that rulings or circulars promulgated by the Commissioner of Internal Revenue
have no retroactive application where to so apply them would be prejudicial to taxpayers. The prejudice to
petitioner of the retroactive application of Memorandum Circular No. 4-71 is beyond question. It was issued
only in 1971, or three years after 1968, the last year that petitioner had withheld taxes under General Circular
No. V-334. The assessment and demand on petitioner to pay deficiency withholding income tax was also made
three years after 1968 for a period of time commencing in 1965. Petitioner was no longer in a position to
withhold taxes due from foreign corporations because it had already remitted all film rentals and no longer had

any control over them when the new Circular was issued. And in so far as the enumerated exceptions are
concerned, admittedly, petitioner does not fall under any of them.
Respondent claims, however, that the provision on non-retroactivity is inapplicable in the present case in that
General Circular No. V-334 is a nullity because in effect, it changed the law on the matter. The Court of Tax
Appeals sustained this position holding that: "Deductions are wholly and exclusively within the power of
Congress or the law-making body to grant, condition or deny; and where the statute imposes a tax equal to a
specified rate or percentage of the gross or entire amount received by the taxpayer, the authority of some
administrative officials to modify or change, much less reduce, the basis or measure of the tax should not be
read into law." 4Therefore, the Tax Court concluded, petitioner did not acquire any vested right thereunder as
the same was a nullity.
The rationale behind General Circular No. V-334 was clearly stated therein, however: "It ha(d) been
determined that the tax is still imposed on income derived from capital, or labor, or both combined, in
accordance with the basic principle of income taxation ...and that a mere return of capital or investment is not
income ... ." "A part of the receipts of a non-resident foreign film distributor derived from said film represents,
therefore, a return of investment." The Circular thus fixed the return of capital at 50% to simplify the
administrative chore of determining the portion of the rentals covering the return of capital." 5
Were the "gross income" base clear from Sec. 24 (b), perhaps, the ratiocination of the Tax Court could be
upheld. It should be noted, however, that said Section was not too plain and simple to understand. The fact
that the issuance of the General Circular in question was rendered necessary leads to no other conclusion
than that it was not easy of comprehension and could be subjected to different interpretations.
In fact, Republic Act No. 2343, dated June 20, 1959, supra, which was the basis of General Circular No. V-334,
was just one in a series of enactments regarding Sec. 24 (b) of the Tax Code. Republic Act No. 3825 came
next on June 22, 1963 without changing the basis but merely adding a proviso (in bold letters).
(b) Tax on foreign corporation.(1) Non-resident corporations. There shall be levied,
collected and paid for each taxable year, in lieu of the tax imposed by the preceding paragraph,
upon the amount received by every foreign corporation not engaged in trade or business within
the Philippines, from all sources within the Philippines, as interest, dividends, rents, salaries,
wages, premiums annuities, compensations, remunerations, emoluments, or other fixed or
determinable annual or periodical gains, profits, and income, a tax equal to thirty per centum of
such amount: PROVIDED, HOWEVER, THAT PREMIUMS SHALL NOT INCLUDE
REINSURANCE PREMIUMS. (double emphasis ours).
Republic Act No. 3841, dated likewise on June 22, 1963, followed after, omitting the proviso and inserting
some words (also in bold letters).
(b) Tax on foreign corporations.(1) Non-resident corporations.There shall be levied,
collected and paid for each taxable year, in lieu of the tax imposed by the preceding paragraph,
upon the amount received by every foreign corporation not engaged in trade or business within
the Philippines, from all sources within the Philippines, as interest, dividends, rents, salaries,
wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or
determinable annual or periodical OR CASUAL gains, profits and income, AND CAPITAL
GAINS, a tax equal to thirty per centum of such amount. 6 (double emphasis supplied)
The principle of legislative approval of administrative interpretation by re-enactment clearly obtains in this case.
It provides that "the re-enactment of a statute substantially unchanged is persuasive indication of the adoption
by Congress of a prior executive construction. 7 Note should be taken of the fact that this case involves not a
mere opinion of the Commissioner or ruling rendered on a mere query, but a Circular formally issued to "all
internal revenue officials" by the then Commissioner of Internal Revenue.

It was only on June 27, 1968 under Republic Act No. 5431, supra, which became the basis of Revenue
Memorandum Circular No. 4-71, that Sec. 24 (b) was amended to refer specifically to 35% of the "gross
income."
This Court is not unaware of the well-entrenched principle that the Government is never estopped from
collecting taxes because of mistakes or errors on the part of its
agents. 8 In fact, utmost caution should be taken in this regard. 9 But, like other principles of law, this also
admits of exceptions in the interest of justice and fairplay. The insertion of Sec. 338-A into the National Internal
Revenue Code, as held in the case of Tuason, Jr. vs. Lingad, 10 is indicative of legislative intention to support
the principle of good faith. In fact, in the United States, from where Sec. 24 (b) was patterned, it has been held
that the Commissioner of Collector is precluded from adopting a position inconsistent with one previously taken
where injustice would result therefrom, 11 or where there has been a misrepresentation to the taxpayer. 12
We have also noted that in its Decision, the Court of Tax Appeals further required the petitioner to pay interest
and surcharge as provided for in Sec. 51 (e) of the Tax Code in addition to the deficiency withholding tax of P
525,897.06. This additional requirement is much less called for because the petitioner relied in good faith and
religiously complied with no less than a Circular issued "to all internal revenue officials" by the highest official of
the Bureau of Internal Revenue and approved by the then Secretary of Finance. 13
With the foregoing conclusions arrived at, resolution of the issue of prescription becomes unnecessary.
WHEREFORE, the judgment of the Court of Tax Appeals is hereby reversed, and the questioned assessment
set aside. No costs.
SO ORDERED.
Makasiar (Acting Chairman), Fernandez, Guerrero and De Castro, * JJ., concur.

Republic of the Philippines

SUPREME COURT
Baguio City
FIRST DIVISION
G.R. No. 137873

April 20, 2001

D. M. CONSUNJI, INC., petitioner,

vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.
KAPUNAN, J.:
At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M. Consunji, Inc., fell 14
floors from the Renaissance Tower, Pasig City to his death.
PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a report dated
November 25, 1990, stating that:
x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila where he was
pronounced dead on arrival (DOA) by the attending physician, Dr. Errol de Yzo[,] at around 2:15 p.m. of
the same date.
Investigation disclosed that at the given time, date and place, while victim Jose A. Juego together with
Jessie Jaluag and Delso Destajo [were] performing their work as carpenter[s] at the elevator core of the
14th floor of the Tower D, Renaissance Tower Building on board a [p]latform made of channel beam
(steel) measuring 4.8 meters by 2 meters wide with pinulid plywood flooring and cable wires attached to
its four corners and hooked at the 5 ton chain block, when suddenly, the bolt or pin which was merely
inserted to connect the chain block with the [p]latform, got loose xxx causing the whole [p]latform
assembly and the victim to fall down to the basement of the elevator core, Tower D of the building
under construction thereby crushing the victim of death, save his two (2) companions who luckily
jumped out for safety.
It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was then on board
and performing work, fell. And the falling of the [p]latform was due to the removal or getting loose of the
pin which was merely inserted to the connecting points of the chain block and [p]latform but without a
safety lock.1
On May 9, 1991, Jose Juegos widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a complaint for
damages against the deceaseds employer, D.M. Consunji, Inc. The employer raised, among other defenses,
the widows prior availment of the benefits from the State Insurance Fund.
After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive portion of the RTC
decision reads:
WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as follows:
1. P50,000.00 for the death of Jose A. Juego.
2. P10,000.00 as actual and compensatory damages.
3. P464,000.00 for the loss of Jose A. Juegos earning capacity.
4. P100,000.00 as moral damages.
5. P20,000.00 as attorneys fees, plus the costs of suit.
SO ORDERED.2
On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto.
D. M. Consunji now seeks the reversal of the CA decision on the following grounds:

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

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

THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS PRESUMED

NEGLIGENT UNDER ARTICLE 2180 OF THE CIVIL CODE, AND

THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT PRECLUDED

FROM RECOVERING DAMAGES UNDER THE CIVIL CODE.3

Petitioner maintains that the police report reproduced above is hearsay and, therefore, inadmissible. The CA
ruled otherwise. It held that said report, being an entry in official records, is an exception to the hearsay rule.
The Rules of Court provide that a witness can testify only to those facts which he knows of his personal
knowledge, that is, which are derived from his perception.4 A witness, therefore, may not testify as what he
merely learned from others either because he was told or read or heard the same. Such testimony is
considered hearsay and may not be received as proof of the truth of what he has learned.5 This is known as
the hearsay rule.
Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as evidence
applies to written, as well as oral statements.6
The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error and
untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light
and exposed by the test of cross-examiantion.7 The hearsay rule, therefore, excludes evidence that cannot be
tested by cross-examination.8
The Rules of Court allow several exceptions to the rule,9 among which are entries in official records. Section
44, Rule 130 provides:
Entries in official records made in the performance of his duty made in the performance of his duty by a
public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law
areprima facie evidence of the facts therein stated.
In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work of Chief Justice Moran, enumerated the
requisites for admissibility under the above rule:
(a) that the entry was made by a public officer or by another person specially enjoined by law to do so;
(b) that it was made by the public officer in the performance of his duties, or by such other person in the
performance of a duty specially enjoined by law; and
(c) that the public officer or other person had sufficient knowledge of the facts by him stated, which
must have been acquired by him personally or through official information.
The CA held that the police report meets all these requisites. Petitioner contends that the last requisite is not
present.
The Court notes that PO3 Villanueva, who signed the report in question, also testified before the trial court.
InRodriguez vs. Court of Appeals,11 which involved a Fire Investigation Report, the officer who signed the fire
report also testified before the trial court. This Court held that the report was inadmissible for the purpose of
proving the truth of the statements contained in the report but admissible insofar as it constitutes part of the
testimony of the officer who executed the report.

x x x. Since Major Enriquez himself took the witness stand and was available for cross-examination, the
portions of the report which were of his personal knowledge or which consisted of his perceptions and
conclusions were not hearsay. The rest of the report, such as the summary of the statements of the
parties based on their sworn statements (which were annexed to the Report) as well as the latter,
having been included in the first purpose of the offer [as part of the testimony of Major Enriquez], may
then be considered as independently relevant statements which were gathered in the course of the
investigation and may thus be admitted as such, but not necessarily to prove the truth thereof. It has
been said that:
"Where regardless of the truth or falsity of a statement, the fact that it has been made is
relevant, the hearsay rule does not apply, but the statement may be shown. Evidence as to the
making of such statement is not secondary but primary, for the statement itself may constitute a
fact in issue, or be circumstantially relevant as to the existence of such a fact."
When Major Enriquez took the witness stand, testified for petitioners on his Report and made himself
available for cross-examination by the adverse party, the Report, insofar as it proved that certain
utterances were made (but not their truth), was effectively removed from the ambit of the
aforementioned Section 44 of Rule 130. Properly understood, this section does away with the testimony
in open court of the officer who made the official record, considers the matter as an exception to the
hearsay rule and makes the entries in said official record admissible in evidence as prima
facie evidence of the facts therein stated. The underlying reasons for this exceptionary rule are
necessity and trustworthiness, as explained in Antillon v. Barcelon.
The litigation is unlimited in which testimony by officials is daily needed; the occasions in which
the officials would be summoned from his ordinary duties to declare as a witness are
numberless. The public officers are few in whose daily work something is not done in which
testimony is not needed from official sources. Were there no exception for official statements,
hosts of officials would be found devoting the greater part of their time to attending as witnesses
in court or delivering deposition before an officer. The work of administration of government and
the interest of the public having business with officials would alike suffer in consequence. For
these reasons, and for many others, a certain verity is accorded such documents, which is not
extended to private documents. (3 Wigmore on Evidence, Sec. 1631).
The law reposes a particular confidence in public officers that it presumes they will discharge
their several trusts with accuracy and fidelity; and, therefore, whatever acts they do in discharge
of their duty may be given in evidence and shall be taken to be true under such a degree of
caution as to the nature and circumstances of each case may appear to require.
It would have been an entirely different matter if Major Enriquez was not presented to testify on his
report. In that case the applicability of Section 44 of Rule 143 would have been ripe for determination,
and this Court would have agreed with the Court of Appeals that said report was inadmissible since the
aforementioned third requisite was not satisfied. The statements given by the sources of information of
Major Enriquez failed to qualify as "official information," there being no showing that, at the very least,
they were under a duty to give the statements for record.
Similarly, the police report in this case is inadmissible for the purpose of proving the truth of the statements
contained therein but is admissible insofar as it constitutes part of the testimony of PO3 Villanueva.
In any case, the Court holds that portions of PO3 Villanuevas testimony which were of his personal knowledge
suffice to prove that Jose Juego indeed died as a result of the elevator crash. PO3 Villanueva had seen
Juegos remains at the morgue,12 making the latters death beyond dispute. PO3 Villanueva also conducted an
ocular inspection of the premises of the building the day after the incident13 and saw the platform for
himself.14 He observed that the platform was crushed15 and that it was totally damaged.16 PO3 Villanueva also
required Garcia and Fabro to bring the chain block to the police headquarters. Upon inspection, he noticed that
the chain was detached from the lifting machine, without any pin or bolt.17

What petitioner takes particular exception to is PO3 Villanuevas testimony that the cause of the fall of the
platform was the loosening of the bolt from the chain block. It is claimed that such portion of the testimony is
mere opinion. Subject to certain exceptions,18 the opinion of a witness is generally not admissible.19
Petitioners contention, however, loses relevance in the face of the application of res ipsa loquitur by the CA.
The effect of the doctrine is to warrant a presumption or inference that the mere fall of the elevator was a result
of the person having charge of the instrumentality was negligent. As a rule of evidence, the doctrine of res ipsa
loquituris peculiar to the law of negligence which recognizes that prima facie negligence may be established
without direct proof and furnishes a substitute for specific proof of negligence.20
The concept of res ipsa loquitur has been explained in this wise:
While negligence is not ordinarily inferred or presumed, and while the mere happening of an accident or
injury will not generally give rise to an inference or presumption that it was due to negligence on
defendants part, under the doctrine of res ipsa loquitur, which means, literally, the thing or transaction
speaks for itself, or in one jurisdiction, that the thing or instrumentality speaks for itself, the facts or
circumstances accompanying an injury may be such as to raise a presumption, or at least permit an
inference of negligence on the part of the defendant, or some other person who is charged with
negligence.
x x x where it is shown that the thing or instrumentality which caused the injury complained of was
under the control or management of the defendant, and that the occurrence resulting in the injury was
such as in the ordinary course of things would not happen if those who had its control or management
used proper care, there is sufficient evidence, or, as sometimes stated, reasonable evidence, in the
absence of explanation by the defendant, that the injury arose from or was caused by the defendants
want of care.21
One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is absent or not
available.22
The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the
instrumentality which causes the injury either knows the cause of the accident or has the best
opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore is compelled to
allege negligence in general terms and to rely upon the proof of the happening of the accident in order
to establish negligence. The inference which the doctrine permits is grounded upon the fact that the
chief evidence of the true cause, whether culpable or innocent, is practically accessible to the
defendant but inaccessible to the injured person.
It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff, without
knowledge of the cause, reaches over to defendant who knows or should know the cause, for any
explanation of care exercised by the defendant in respect of the matter of which the plaintiff complains.
The res ipsa loquitur doctrine, another court has said, is a rule of necessity, in that it proceeds on the
theory that under the peculiar circumstances in which the doctrine is applicable, it is within the power of
the defendant to show that there was no negligence on his part, and direct proof of defendants
negligence is beyond plaintiffs power. Accordingly, some court add to the three prerequisites for the
application of the res ipsa loquitur doctrine the further requirement that for the res ipsa loquitur doctrine
to apply, it must appear that the injured party had no knowledge or means of knowledge as to the cause
of the accident, or that the party to be charged with negligence has superior knowledge or opportunity
for explanation of the accident.23
The CA held that all the requisites of res ipsa loquitur are present in the case at bar:
There is no dispute that appellees husband fell down from the 14th floor of a building to the basement
while he was working with appellants construction project, resulting to his death. The construction site
is within the exclusive control and management of appellant. It has a safety engineer, a project

superintendent, a carpenter leadman and others who are in complete control of the situation therein.
The circumstances of any accident that would occur therein are peculiarly within the knowledge of the
appellant or its employees. On the other hand, the appellee is not in a position to know what caused the
accident. Res ipsa loquitur is a rule of necessity and it applies where evidence is absent or not readily
available, provided the following requisites are present: (1) the accident was of a kind which does not
ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused the injury
was under the exclusive control of the person charged with negligence; and (3) the injury suffered must
not have been due to any voluntary action or contribution on the part of the person injured. x x x.
No worker is going to fall from the 14th floor of a building to the basement while performing work in a
construction site unless someone is negligent[;] thus, the first requisite for the application of the rule
of res ipsa loquitur is present. As explained earlier, the construction site with all its paraphernalia and
human resources that likely caused the injury is under the exclusive control and management of
appellant[;] thus[,] the second requisite is also present. No contributory negligence was attributed to the
appellees deceased husband[;] thus[,] the last requisite is also present. All the requisites for the
application of the rule of res ipsa loquitur are present, thus a reasonable presumption or inference of
appellants negligence arises. x x x.24
Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but argues
that the presumption or inference that it was negligent did not arise since it "proved that it exercised due care
to avoid the accident which befell respondents husband."
Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the defendants
negligence is presumed or inferred25 when the plaintiff establishes the requisites for the application of res ipsa
loquitur. Once the plaintiff makes out a prima facie case of all the elements, the burden then shifts to defendant
to explain.26 The presumption or inference may be rebutted or overcome by other evidence and, under
appropriate circumstances disputable presumption, such as that of due care or innocence, may outweigh the
inference.27 It is not for the defendant to explain or prove its defense to prevent the presumption or inference
from arising. Evidence by the defendant of say, due care, comes into play only after the circumstances for the
application of the doctrine has been established.1wphi1.nt
In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed before the police
investigator as evidence of its due care. According to Fabros sworn statement, the company enacted rules and
regulations for the safety and security of its workers. Moreover, the leadman and the bodegero inspect the
chain block before allowing its use.
It is ironic that petitioner relies on Fabros sworn statement as proof of its due care but, in arguing that private
respondent failed to prove negligence on the part of petitioners employees, also assails the same statement
for being hearsay.
Petitioner is correct. Fabros sworn statement is hearsay and inadmissible. Affidavits are inadmissible as
evidence under the hearsay rule, unless the affiant is placed on the witness stand to testify thereon.28 The
inadmissibility of this sort of evidence is based not only on the lack of opportunity on the part of the adverse
party to cross-examine the affiant, but also on the commonly known fact that, generally, an affidavit is not
prepared by the affiant himself but by another who uses his own language in writing the affiants statements
which may either be omitted or misunderstood by the one writing them.29 Petitioner, therefore, cannot use said
statement as proof of its due care any more than private respondent can use it to prove the cause of her
husbands death. Regrettably, petitioner does not cite any other evidence to rebut the inference or presumption
of negligence arising from the application of res ipsa loquitur, or to establish any defense relating to the
incident.
Next, petitioner argues that private respondent had previously availed of the death benefits provided under the
Labor Code and is, therefore, precluded from claiming from the deceaseds employer damages under the Civil
Code.
Article 173 of the Labor Code states:

Article 173. Extent of liability. Unless otherwise provided, the liability of the State Insurance Fund
under this Title shall be exclusive and in place of all other liabilities of the employer to the employee, his
dependents or anyone otherwise entitled to receive damages on behalf of the employee or his
dependents. The payment of compensation under this Title shall not bar the recovery of benefits as
provided for in Section 699 of the Revised Administrative Code, Republic Act Numbered Eleven
hundred sixty-one, as amended, Republic Act Numbered Six hundred ten, as amended, Republic Act
Numbered Forty-eight hundred sixty-four as amended, and other laws whose benefits are administered
by the System or by other agencies of the government.
The precursor of Article 173 of the Labor Code, Section 5 of the Workmens Compensation Act, provided that:
Section 5. Exclusive right to compensation. The rights and remedies granted by this Act to an
employee by reason of a personal injury entitling him to compensation shall exclude all other rights and
remedies accruing to the employee, his personal representatives, dependents or nearest of kin against
the employer under the Civil Code and other laws because of said injury x x x.
Whether Section 5 of the Workmens Compensation Act allowed recovery under said Act as well as under the
Civil Code used to be the subject of conflicting decisions. The Court finally settled the matter in Floresca
vs.Philex Mining Corporation,30 which involved a cave-in resulting in the death of the employees of the Philex
Mining Corporation. Alleging that the mining corporation, in violation of government rules and regulations, failed
to take the required precautions for the protection of the employees, the heirs of the deceased employees filed
a complaint against Philex Mining in the Court of First Instance (CFI). Upon motion of Philex Mining, the CFI
dismissed the complaint for lack of jurisdiction. The heirs sought relief from this Court.
Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En Banc,31 following
the rule in Pacaa vs. Cebu Autobus Company, held in the affirmative.
WE now come to the query as to whether or not the injured employee or his heirs in case of death have
a right of selection or choice of action between availing themselves of the workers right under the
Workmens Compensation Act and suing in the regular courts under the Civil Code for higher damages
(actual, moral and exemplary) from the employers by virtue of the negligence or fault of the employers
or whether they may avail themselves cumulatively of both actions, i.e., collect the limited
compensation under the Workmens Compensation Act and sue in addition for damages in the regular
courts.
In disposing of a similar issue, this Court in Pacaa vs. Cebu Autobus Company, 32 SCRA 442, ruled
thatan injured worker has a choice of either to recover from the employer the fixed amounts set by the
Workmens Compensation Act or to prosecute an ordinary civil action against the tortfeasor for higher
damages but he cannot pursue both courses of action simultaneously. [Underscoring supplied.]
Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit under the Civil
Code despite having availed of the benefits provided under the Workmens Compensation Act. The Court
reasoned:
With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated May 14, 1968
before the court a quo, that the heirs of the deceased employees, namely Emerito Obra, Larry Villar, Jr.,
Aurelio Lanuza, Lorenzo Isla and Saturnino submitted notices and claims for compensation to the
Regional Office No. 1 of the then Department of Labor and all of them have been paid in full as of
August 25, 1967, except Saturnino Martinez whose heirs decided that they be paid in installments x x x.
Such allegation was admitted by herein petitioners in their opposition to the motion to dismiss dated
may 27, 1968 x x x in the lower court, but they set up the defense that the claims were filed under the
Workmens Compensation Act before they learned of the official report of the committee created to
investigate the accident which established the criminal negligence and violation of law by Philex, and
which report was forwarded by the Director of Mines to then Executive Secretary Rafael Salas in a
letter dated October 19, 1967 only x x x.

WE hold that although the other petitioners had received the benefits under the Workmens
Compensation Act, such my not preclude them from bringing an action before the regular court
because they became cognizant of the fact that Philex has been remiss in its contractual obligations
with the deceased miners only after receiving compensation under the Act. Had petitioners been aware
of said violation of government rules and regulations by Philex, and of its negligence, they would not
have sought redress under the Workmens Compensation Commission which awarded a lesser amount
for compensation. The choice of the first remedy was based on ignorance or a mistake of fact, which
nullifies the choice as it was not an intelligent choice. The case should therefore be remanded to the
lower court for further proceedings. However, should the petitioners be successful in their bid before the
lower court, the payments made under the Workmens Compensation Act should be deducted from the
damages that may be decreed in their favor. [Underscoring supplied.]
The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael Maritime
Corporation vs. Avelino,32 Vda. De Severo vs. Feliciano-Go,33 and Marcopper Mining Corp. vs. Abeleda.34 In the
last case, the Court again recognized that a claimant who had been paid under the Act could still sue under the
Civil Code. The Court said:
In the Robles case, it was held that claims for damages sustained by workers in the course of their
employment could be filed only under the Workmens Compensation Law, to the exclusion of all further
claims under other laws. In Floresca, this doctrine was abrogated in favor of the new rule that the
claimants may invoke either the Workmens Compensation Act or the provisions of the Civil Code,
subject to the consequence that the choice of one remedy will exclude the other and that the
acceptance of compensation under the remedy chosen will preclude a claim for additional benefits
under the other remedy. The exception is where a claimant who has already been paid under the
Workmens Compensation Act may still sue for damages under the Civil Code on the basis of
supervening facts or developments occurring after he opted for the first remedy. (Underscoring
supplied.)
Here, the CA held that private respondents case came under the exception because private respondent was
unaware of petitioners negligence when she filed her claim for death benefits from the State Insurance Fund.
Private respondent filed the civil complaint for damages after she received a copy of the police investigation
report and the Prosecutors Memorandum dismissing the criminal complaint against petitioners personnel.
While stating that there was no negligence attributable to the respondents in the complaint, the prosecutor
nevertheless noted in the Memorandum that, "if at all," the "case is civil in nature." The CA thus applied the
exception in Floresca:
x x x We do not agree that appellee has knowledge of the alleged negligence of appellant as early as
November 25, 1990, the date of the police investigators report. The appellee merely executed her
sworn statement before the police investigator concerning her personal circumstances, her relation to
the victim, and her knowledge of the accident. She did not file the complaint for "Simple Negligence
Resulting to Homicide" against appellants employees. It was the investigator who recommended the
filing of said case and his supervisor referred the same to the prosecutors office. This is a standard
operating procedure for police investigators which appellee may not have even known. This may
explain why no complainant is mentioned in the preliminary statement of the public prosecutor in her
memorandum dated February 6, 1991, to wit: "Respondent Ferdinand Fabro x x x are being charged by
complainant of "Simple Negligence Resulting to Homicide." It is also possible that the appellee did not
have a chance to appear before the public prosecutor as can be inferred from the following statement in
said memorandum: "Respondents who were notified pursuant to Law waived their rights to present
controverting evidence," thus there was no reason for the public prosecutor to summon the appellee.
Hence, notice of appellants negligence cannot be imputed on appellee before she applied for death
benefits under ECC or before she received the first payment therefrom. Her using the police
investigation report to support her complaint filed on May 9, 1991 may just be an afterthought after
receiving a copy of the February 6, 1991 Memorandum of the Prosecutors Office dismissing the
criminal complaint for insufficiency of evidence, stating therein that: "The death of the victim is not
attributable to any negligence on the part of the respondents. If at all and as shown by the records this
case is civil in nature." (Underscoring supplied.) Considering the foregoing, We are more inclined to

believe appellees allegation that she learned about appellants negligence only after she applied for
and received the benefits under ECC. This is a mistake of fact that will make this case fall under the
exception held in the Floresca ruling.35
The CA further held that not only was private respondent ignorant of the facts, but of her rights as well:
x x x. Appellee [Maria Juego] testified that she has reached only elementary school for her educational
attainment; that she did not know what damages could be recovered from the death of her husband;
and that she did not know that she may also recover more from the Civil Code than from the ECC. x x
x.36
Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in her complaint
that her application and receipt of benefits from the ECC were attended by ignorance or mistake of fact. Not
being an issue submitted during the trial, the trial court had no authority to hear or adjudicate that issue."
Petitioner also claims that private respondent could not have been ignorant of the facts because as early as
November 28, 1990, private respondent was the complainant in a criminal complaint for "Simple Negligence
Resulting to Homicide" against petitioners employees. On February 6, 1991, two months before the filing of
the action in the lower court, Prosecutor Lorna Lee issued a resolution finding that, although there was
insufficient evidence against petitioners employees, the case was "civil in nature." These purportedly show
that prior to her receipt of death benefits from the ECC on January 2, 1991 and every month thereafter, private
respondent also knew of the two choices of remedies available to her and yet she chose to claim and receive
the benefits from the ECC.
When a party having knowledge of the facts makes an election between inconsistent remedies, the election is
final and bars any action, suit, or proceeding inconsistent with the elected remedy, in the absence of fraud by
the other party. The first act of election acts as a bar.37 Equitable in nature, the doctrine of election of remedies
is designed to mitigate possible unfairness to both parties. It rests on the moral premise that it is fair to hold
people responsible for their choices. The purpose of the doctrine is not to prevent any recourse to any remedy,
but to prevent a double redress for a single wrong.38
The choice of a party between inconsistent remedies results in a waiver by election. Hence, the rule
in Florescathat a claimant cannot simultaneously pursue recovery under the Labor Code and prosecute an
ordinary course of action under the Civil Code. The claimant, by his choice of one remedy, is deemed to have
waived the other.
Waiver is the intentional relinquishment of a known right.39
[It] is an act of understanding that presupposes that a party has knowledge of its rights, but chooses not
to assert them. It must be generally shown by the party claiming a waiver that the person against whom
the waiver is asserted had at the time knowledge, actual or constructive, of the existence of the partys
rights or of all material facts upon which they depended. Where one lacks knowledge of a right, there is
no basis upon which waiver of it can rest. Ignorance of a material fact negates waiver, and waiver
cannot be established by a consent given under a mistake or misapprehension of fact.
A person makes a knowing and intelligent waiver when that person knows that a right exists and has
adequate knowledge upon which to make an intelligent decision.
Waiver requires a knowledge of the facts basic to the exercise of the right waived, with an awareness of
its consequences. That a waiver is made knowingly and intelligently must be illustrated on the record or
by the evidence.40
That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the exception in Floresca.
It is in light of the foregoing principles that we address petitioners contentions.

Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in her complaint
that she had availed of benefits from the ECC. It is, thus, erroneous for petitioner to burden private respondent
with raising waiver as an issue. On the contrary, it is the defendant who ought to plead waiver, as petitioner did
in pages 2-3 of its Answer;41 otherwise, the defense is waived. It is, therefore, perplexing for petitioner to now
contend that the trial court had no jurisdiction over the issue when petitioner itself pleaded waiver in the
proceedings before the trial court.
Does the evidence show that private respondent knew of the facts that led to her husbands death and the
rights pertaining to a choice of remedies?
It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this case, the "fact" that
served as a basis for nullifying the waiver is the negligence of petitioners employees, of which private
respondent purportedly learned only after the prosecutor issued a resolution stating that there may be civil
liability. InFloresca, it was the negligence of the mining corporation and its violation of government rules and
regulations. Negligence, or violation of government rules and regulations, for that matter, however, is not a fact,
but aconclusion of law, over which only the courts have the final say. Such a conclusion binds no one until the
courts have decreed so. It appears, therefore, that the principle that ignorance or mistake of fact nullifies a
waiver has been misapplied in Floresca and in the case at bar.
In any event, there is no proof that private respondent knew that her husband died in the elevator crash when
on November 15, 1990 she accomplished her application for benefits from the ECC. The police investigation
report is dated November 25, 1990, 10 days after the accomplishment of the form. Petitioner filed the
application in her behalf on November 27, 1990.
There is also no showing that private respondent knew of the remedies available to her when the claim before
the ECC was filed. On the contrary, private respondent testified that she was not aware of her rights.
Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no one from
compliance therewith. As judicial decisions applying or interpreting the laws or the Constitution form part of the
Philippine legal system (Article 8, Civil Code), private respondent cannot claim ignorance of this Courts ruling
inFloresca allowing a choice of remedies.
The argument has no merit. The application of Article 3 is limited to mandatory and prohibitory laws.42 This may
be deduced from the language of the provision, which, notwithstanding a persons ignorance, does not excuse
his or her compliance with the laws. The rule in Floresca allowing private respondent a choice of remedies is
neither mandatory nor prohibitory. Accordingly, her ignorance thereof cannot be held against her.
Finally, the Court modifies the affirmance of the award of damages. The records do not indicate the total
amount private respondent ought to receive from the ECC, although it appears from Exhibit "K"43 that she
received P3,581.85 as initial payment representing the accrued pension from November 1990 to March 1991.
Her initial monthly pension, according to the same Exhibit "K," was P596.97 and present total monthly pension
was P716.40. Whether the total amount she will eventually receive from the ECC is less than the sum of
P644,000.00 in total damages awarded by the trial court is subject to speculation, and the case is remanded to
the trial court for such determination. Should the trial court find that its award is greater than that of the ECC,
payments already received by private respondent under the Labor Code shall be deducted from the trial court'
award of damages. Consistent with our ruling in Floresca, this adjudication aims to prevent double
compensation.
WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine whether the
award decreed in its decision is more than that of the ECC. Should the award decreed by the trial court be
greater than that awarded by the ECC, payments already made to private respondent pursuant to the Labor
Code shall be deducted therefrom. In all other respects, the Decision of the Court of Appeals is AFFIRMED.
SO ORDERED.

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

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-15127

May 30, 1961

EMETERIO CUI, plaintiff-appellant,

vs.
ARELLANO UNIVERSITY, defendant-appellee.
G.A.S. Sipin, Jr., for plaintiff-appellant.
E. Voltaire Garcia for defendant-appellee.
CONCEPCION, J.:
Appeal by plaintiff Emeterio Cui from a decision of the Court of First Instance of Manila, absolving defendant
Arellano University from plaintiff's complaint, with costs against the plaintiff, and dismissing defendant's counter
claim, for insufficiency of proof thereon.
In the language of the decision appealed from:
The essential facts of this case are short and undisputed. As established by the agreement of facts
Exhibits X and by the respective oral and documentary evidence introduced by the parties, it appears
conclusive that plaintiff, before the school year 1948-1949 took up preparatory law course in the
defendant University. After finishing his preparatory law course plaintiff enrolled in the College of Law of
the defendant from the school year 1948-1949. Plaintiff finished his law studies in the defendant
university up to and including the first semester of the fourth year. During all the school years in which
plaintiff was studying law in defendant law college, Francisco R. Capistrano, brother of the mother of
plaintiff, was the dean of the College of Law and legal counsel of the defendant university. Plaintiff
enrolled for the last semester of his law studies in the defendant university but failed to pay his tuition
fees because his uncle Dean Francisco R. Capistrano having severed his connection with defendant
and having accepted the deanship and chancellorship of the College of Law of Abad Santos University,
plaintiff left the defendant's law college and enrolled for the last semester of his fourth year law in the
college of law of the Abad Santos University graduating from the college of law of the latter university.
Plaintiff, during all the time he was studying law in defendant university was awarded scholarship
grants, for scholastic merit, so that his semestral tuition fees were returned to him after the ends of
semester and when his scholarship grants were awarded to him. The whole amount of tuition fees paid
by plaintiff to defendant and refunded to him by the latter from the first semester up to and including the
first semester of his last year in the college of law or the fourth year, is in total P1,033.87. After
graduating in law from Abad Santos University he applied to take the bar examination. To secure
permission to take the bar he needed the transcripts of his records in defendant Arellano University.
Plaintiff petitioned the latter to issue to him the needed transcripts. The defendant refused until after he
had paid back the P1,033 87 which defendant refunded to him as above stated. As he could not take
the bar examination without those transcripts, plaintiff paid to defendant the said sum under protest.
This is the sum which plaintiff seeks to recover from defendant in this case.
Before defendant awarded to plaintiff the scholarship grants as above stated, he was made to sign the
following contract covenant and agreement:
"In consideration of the scholarship granted to me by the University, I hereby waive my right to transfer
to another school without having refunded to the University (defendant) the equivalent of my
scholarship cash.
(Sgd.) Emeterio Cui".
It is admitted that, on August 16, 1949, the Director of Private Schools issued Memorandum No. 38, series of
1949, on the subject of "Scholarship," addressed to "All heads of private schools, colleges and universities,"
reading:
1. School catalogs and prospectuses submitted to this, Bureau show that some schools offer full or
partial scholarships to deserving students for excellence in scholarship or for leadership in extra-

curricular activities. Such inducements to poor but gifted students should be encouraged. But to
stipulate the condition that such scholarships are good only if the students concerned continue in the
same school nullifies the principle of merit in the award of these scholarships.
2. When students are given full or partial scholarships, it is understood that such scholarships are
merited and earned. The amount in tuition and other fees corresponding to these scholarships should
not be subsequently charged to the recipient students when they decide to quit school or to transfer to
another institution. Scholarships should not be offered merely to attract and keep students in a school.
3. Several complaints have actually been received from students who have enjoyed scholarships, full or
partial, to the effect that they could not transfer to other schools since their credentials would not be
released unless they would pay the fees corresponding to the period of the scholarships. Where the
Bureau believes that the right of the student to transfer is being denied on this ground, it reserves the
right to authorize such transfer.
that defendant herein received a copy of this memorandum; that plaintiff asked the Bureau of Private Schools
to pass upon the issue on his right to secure the transcript of his record in defendant University, without being
required to refund the sum of P1,033.87; that the Bureau of Private Schools upheld the position taken by the
plaintiff and so advised the defendant; and that, this notwithstanding, the latter refused to issue said transcript
of records, unless said refund were made, and even recommended to said Bureau that it issue a written order
directing the defendant to release said transcript of record, "so that the case may be presented to the court for
judicial action." As above stated, plaintiff was, accordingly, constrained to pay, and did pay under protest, said
sum of P1,033.87, in order that he could take the bar examination in 1953. Subsequently, he brought this
action for the recovery of said amount, aside from P2,000 as moral damages, P500 as exemplary damages,
P2,000 as attorney's fees, and P500 as expenses of litigation.
In its answer, defendant reiterated the stand it took, vis-a-vis the Bureau of Private Schools, namely, that the
provisions of its contract with plaintiff are valid and binding and that the memorandum above-referred to is null
and void. It, likewise, set up a counterclaim for P10,000.00 as damages, and P3,000 as attorney's fees.
The issue in this case is whether the above quoted provision of the contract between plaintiff and the
defendant, whereby the former waived his right to transfer to another school without refunding to the latter the
equivalent of his scholarships in cash, is valid or not. The lower court resolved this question in the affirmative,
upon the ground that the aforementioned memorandum of the Director of Private Schools is not a law; that the
provisions thereof are advisory, not mandatory in nature; and that, although the contractual provision "may be
unethical, yet it was more unethical for plaintiff to quit studying with the defendant without good reasons and
simply because he wanted to follow the example of his uncle." Moreover, defendant maintains in its brief that
the aforementioned memorandum of the Director of Private Schools is null and void because said officer had
no authority to issue it, and because it had been neither approved by the corresponding department head nor
published in the official gazette.
We do not deem it necessary or advisable to consider as the lower court did, the question whether plaintiff had
sufficient reasons or not to transfer from defendant University to the Abad Santos University. The nature of the
issue before us, and its far reaching effects, transcend personal equations and demand a determination of the
case from a high impersonal plane. Neither do we deem it essential to pass upon the validity of said
Memorandum No. 38, for, regardless of the same, we are of the opinion that the stipulation in question is
contrary to public policy and, hence, null and void. The aforesaid memorandum merely incorporates a sound
principle of public policy. As the Director of Private Schools correctly pointed, out in his letter, Exhibit B, to the
defendant,
There is one more point that merits refutation and that is whether or not the contract entered into
between Cui and Arellano University on September 10, 1951 was void as against public policy. In the
case of Zeigel vs. Illinois Trust and Savings Bank, 245 Ill. 180, 19 Ann. Case 127, the court said: 'In
determining a public policy of the state, courts are limited to a consideration of the Constitution, the
judicial decisions, the statutes, and the practice of government officers.' It might take more than a
government bureau or office to lay down or establish a public policy, as alleged in your communication,

but courts consider the practices of government officials as one of the four factors in determining a
public policy of the state. It has been consistently held in America that under the principles relating to
the doctrine of public policy, as applied to the law of contracts, courts of justice will not recognize or
uphold a transaction which its object, operation, or tendency is calculated to be prejudicial to the public
welfare, to sound morality or to civic honesty (Ritter vs. Mutual Life Ins. Co., 169 U.S. 139; Heding vs.
Gallaghere 64 L.R.A. 811; Veazy vs. Allen, 173 N.Y. 359). If Arellano University understood clearly the
real essence of scholarships and the motives which prompted this office to issue Memorandum No. 38,
s. 1949, it should have not entered into a contract of waiver with Cui on September 10, 1951, which is a
direct violation of our Memorandum and an open challenge to the authority of the Director of Private
Schools because the contract was repugnant to sound morality and civic honesty. And finally, in Gabriel
vs. Monte de Piedad, Off. Gazette Supp. Dec. 6, 1941, p. 67 we read: 'In order to declare a contract
void as against public policy, a court must find that the contract as to consideration or the thing to be
done, contravenes some established interest of society, or is inconsistent with sound policy and good
morals or tends clearly to undermine the security of individual rights. The policy enunciated in
Memorandum No. 38, s. 1949 is sound policy. Scholarship are awarded in recognition of merit not to
keep outstanding students in school to bolster its prestige. In the understanding of that university
scholarships award is a business scheme designed to increase the business potential of an education
institution. Thus conceived it is not only inconsistent with sound policy but also good morals. But what is
morals? Manresa has this definition. It is good customs; those generally accepted principles of morality
which have received some kind of social and practical confirmation. The practice of awarding
scholarships to attract students and keep them in school is not good customs nor has it received some
kind of social and practical confirmation except in some private institutions as in Arellano University.
The University of the Philippines which implements Section 5 of Article XIV of the Constitution with
reference to the giving of free scholarships to gifted children, does not require scholars to reimburse the
corresponding value of the scholarships if they transfer to other schools. So also with the leading
colleges and universities of the United States after which our educational practices or policies are
patterned. In these institutions scholarships are granted not to attract and to keep brilliant students in
school for their propaganda mine but to reward merit or help gifted students in whom society has an
established interest or a first lien. (Emphasis supplied.)
WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered sentencing
the defendant to pay to the plaintiff the sum of P1,033.87, with interest thereon at the legal rate from
September 1, 1954, date of the institution of this case, as well as the costs, and dismissing defendant's
counterclaim. It is so ordered.
Bengzon, C.J., Padilla, Labrador, Reyes, J.B.L., Barrera, Parades, Dizon, De Leon and Natividad, JJ., concur.
Bautista Angelo, J., reserves his vote.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 139479

December 27, 2002

PHILIPPINE NATIONAL BANK, petitioner,

vs.
NEPOMUCENO PRODUCTIONS, INC., FILM ADVERTISING MEDIA EXHIBITIONS, INC. (FAME),
LUIS NEPOMUCENO, AMPARO NEPOMUCENO, and JESUS NEPOMUCENO, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari of the decision of the Court of Appeals in CA-G.R. CV No.
475001affirming the decision of the Regional Trial Court of Pasig City (Branch 155) in Civil Case No. 28809
which set aside the foreclosure proceedings and auction sale of respondents properties and ordered petitioner
to pay attorneys fees.
The relevant facts of the case are undisputed.
On November 28, 1973, petitioner Philippine National Bank (PNB) granted respondents a 4 Million Pesos
(P4,000,000.00) credit line to finance the filming of the movie "Pacific Connection."2 The loan was secured by
mortgages on respondents real and personal properties, to wit: (1) a 7,623 square meters parcel of land
located in Malugay Street, Makati (referred to as the Malugay property); (2) a 3,000 square meters parcel of
land located in North Forbes Park, Makati (referred to as the Forbes property);3 and (3) several motion picture
equipments.4The credit line was later increased to 6 Million Pesos (P6,000,000.00) on January 14, 1974,5 and
finally to 7.5 Million Pesos (P7,500,000.00) on September 8, 1974.6
Respondents defaulted in their obligation. Petitioner sought foreclosure of the mortgaged properties with the
Sheriffs Office of Pasig, Rizal. Initially scheduled on August 12, 1976, the auction sale was re-scheduled
several times without need of republication of the notice of sale, as stipulated in the Agreement to Postpone
Sale,7 until finally, the auction sale proceeded on December 20, 1976, with petitioner as the highest bidder in
the amount ofP10,432,776.97.8
Aggrieved, respondents filed Civil Case No. 28809 with the Regional Trial Court of Pasig (Branch 155), an
action for annulment of foreclosure sale and damages with injunction.9 Respondents contended that the
foreclosure sale is null and void because: (1) the obligation is yet to mature as there were negotiations for an
additional loan amount of P5,000,000.00; (2) lack of publication; (3) the purchase price was grossly inadequate
and unconscionable; and (4) the foreclosure proceedings were initiated by petitioner in bad faith.10
In its Decision dated September 16, 1992, the court a quo ordered the annulment and setting aside of the
foreclosure proceedings and auction sale held on December 20, 1976 on the ground that there was lack of
publication of the notice of sale.11 The court a quo also ordered petitioner to pay P100,000.00 as attorneys
fees.12
Dissatisfied, petitioner elevated the case to the Court of Appeals.
During completion stage of the appeal, the appellate court issued a Resolution on January 31, 1996 dismissing
petitioners appeal with regard to the Forbes Park property as the same was already the subject of a Deed of
Reconveyance executed by petitioner in favor of respondents on November 22, 1994, as well as a
Compromise Agreement dated September 13, 1994 between the same parties.13 Said Resolution having
become final and executory on February 26, 1996, entry of judgment was made on March 27, 1996.14 Hence,
resolution of the appeal in the Court of Appeals pertained only to the Malugay property.
On December 11, 1998, the appellate court rendered the assailed Decision, which affirmed in toto the decision
of the court a quo.15
Hence, herein petition for review under Rule 45 of the Rules of Court.

Petitioner maintains that:

"I
"THE COURT OF APPEALS ERRED IN DECLARING PNBS FORECLOSURE SALE OF RESPONDENTS
PROPERTIES NULL AND VOID FOR LACK OF REPUBLICATION DESPITE THE PARTIES AGREEMENT
TO WAIVE THE REPUBLICATION AND RESPOSTING OF SHERIFFS SALE
"II
"THE COURT OF APPEALS ERRED IN NOT DECLARING THE RESPONDENTS IN ESTOPPEL TO ASSAIL
THE VALIDITY OF THE FORECLOSURE SALE AFTER THEY INDUCED PNB TO EXECUTE THE
AGREEMENT TO POSTPONE SALE WAIVING THE REPUBLICATION AND REPOSTING OF THE
SHERIFFS NOTICE OF SALE
"III
"THE COURT OF APPEALS ERRED IN SUSTAINING THAT RESPONDENTS ARE NOT THIRD PERSONS IN
CONTEMPLATION OF THE LAW"16
The focal issue in this case is whether the parties to the mortgage can validly waive the posting and publication
requirements mandated by Act No. 3135.
We answer in the negative.
Act. No. 3135, as amended, governing extrajudicial foreclosure of mortgages on real property is specific with
regard to the posting and publication requirements of the notice of sale, to wit:
"Sec. 3. Notice shall be given by posting notices of the sale for not less than twenty days in at least three
public places of the municipality or city where the property is situated, and if such property is worth more than
four hundred pesos, such notice shall also be published once a week for at least three consecutive weeks in a
newspaper of general circulation in the municipality or city."
On this score, it is well settled that what Act No. 3135 requires is: (1) the posting of notices of sale in three
public places; and, (2) the publication of the same in a newspaper of general circulation.17 Failure to publish the
notice of sale constitutes a jurisdictional defect, which invalidates the sale.18
Petitioner, however, insists that the posting and publication requirements can be dispensed with since the
parties agreed in writing that the auction sale may proceed without need of re-publication and re-posting of the
notice of sale.19
We are not convinced. Petitioner and respondents have absolutely no right to waive the posting and
publication requirements of Act No. 3135.
In People v. Donato,20 the Court expounded on what rights and privileges may be waived, viz.:
"x x x the doctrine of waiver extends to rights and privileges of any character, and, since the word 'waiver'
covers every conceivable right, it is the general rule that a person may waive any matter which affects his
property, and any alienable right or privilege of which he is the owner or which belongs to him or to which he is
legally entitled, whether secured by contract, conferred with statute, or guaranteed by constitution, provided
such rights and privileges rest in the individual, are intended for his sole benefit, do not infringe on the rights of
others, and further provided the waiver of the right or privilege is not forbidden by law, and does not contravene
public policy; and the principle is recognized that everyone has a right to waive, and agree to waive, the
advantage of a law or role made solely for the benefit and protection of the individual in his private capacity, if it

can be dispensed with and relinquished without infringing on any public right, and without detriment to the
community at large x x x.
"Although the general rule is that any right or privilege conferred by statute or guaranteed by constitution may
be waived, a waiver in derogation of a statutory right is not favored, and a waiver will be inoperative and void if
it infringes on the rights of others, or would be against public policy or morals and the public interest may be
waived.
"While it has been stated generally that all personal rights conferred by statute and guaranteed by constitution
may be waived, it has also been said that constitutional provisions intended to protect property may be waived,
and even some of the constitutional rights created to secure personal liberty are subjects of waiver."21
While it is established that rights may be waived, Article 6 of the Civil Code explicitly provides that such waiver
is subject to the condition that it is not contrary to law, public order, public policy, morals, or good customs, or
prejudicial to a third person with a right recognized by law.22
The principal object of a notice of sale in a foreclosure of mortgage is not so much to notify the mortgagor as to
inform the public generally of the nature and condition of the property to be sold, and of the time, place, and
terms of the sale. Notices are given to secure bidders and prevent a sacrifice of the property.23 Clearly, the
statutory requirements of posting and publication are mandated, not for the mortgagors benefit, but for the
public or third persons. In fact, personal notice to the mortgagor in extrajudicial foreclosure proceedings is not
even necessary, unless stipulated.24 As such, it is imbued with public policy considerations and any waiver
thereon would be inconsistent with the intent and letter of Act No. 3135.
Moreover, statutory provisions governing publication of notice of mortgage foreclosure sales must be strictly
complied with and slight deviations therefrom will invalidate the notice and render the sale at the very least
voidable.25
"Where required by the statute or by the terms of the foreclosure decree, public notice of the place and time of
the mortgage foreclosure sale must be given, a statute requiring it being held applicable to subsequent sales
as well as to the first "advertised sale of the property. It has been held that failure to advertise a mortgage
foreclosure sale in compliance with statutory requirements constitutes a jurisdictional defect invalidating the
sale and that a substantial error or omission in a notice of sale will render the notice insufficient and vitiate the
sale."26
Thus, in the recent case of Development Bank of the Philippines v. Aguirre,27 the foreclosure sale held more
than two (2) months after the published date of sale was considered void for lack of republication.28 Similarly, in
the instant case, the lack of republication of the notice of the December 20, 1976 foreclosure sale renders it
void.
The right of a bank to foreclose a mortgage upon the mortgagors failure to pay his obligation must be
exercised according to its clear mandate, and every requirement of the law must be complied with, lest the
valid exercise of the right would end.29 The exercise of a right ends when the right disappears, and it
disappears when it is abused especially to the prejudice of others.30
We also cannot accept petitioners argument that respondents should be held in estoppel for inducing the
former to re-schedule the sale without need of republication and reposting of the notice of sale.
Records show that respondents, indeed, requested for the postponement of the foreclosure sale.31 That,
however, is all that respondents sought. Nowhere in the records was it shown that respondents purposely
sought re-scheduling of the sale without need of republication and reposting of the notice of sale. To request
postponement of the sale is one thing; to request it without need of compliance with the statutory requirements
is another. Respondents, therefore, did not commit any act that would have estopped them from questioning
the validity of the foreclosure sale for non-compliance with Act No. 3135.

In addition, the "Agreement to Postpone Sale" signed by respondents was obviously prepared solely by
petitioner.32 A scrutiny of the agreement discloses that it is in a ready-made form and the only participation of
respondents is to affix or "adhere" their signature thereto. It therefore partakes of the nature of a contract of
adhesion, i.e., one in which one of the contracting parties imposes a ready-made form of contract which the
other party may accept or reject, but cannot modify.33 One party prepares the stipulation in the contract, while
the other party merely affixes his signature or his "adhesion" thereto, giving no room for negotiation, and
depriving the latter of the opportunity to bargain on equal footing.34 As such, their terms are construed strictly
against the party who drafted it.35
Finally, while we rule that the appellate court did not commit any error in affirming the decision of the court a
quo, we find the award of P100,000.00 as attorney's fees to be excessive. Article 2208 of the Civil Code allows
the award of such fees when its claimant is compelled to litigate with third persons or to incur expenses to
protect its just and valid claim. In view of petitioner's foreclosure of the property without complying with the
statutory requirements,36 the award of attorney's fees of P25,000.00 is just, fair, and reasonable.
WHEREFORE, the Decision dated December 10, 1998 in CA-G.R. CV No. 47500 is hereby AFFIRMED with
modification that the award of attorneys fees is reduced to P25,000.00.
No pronouncement as to costs.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Quisumbing, and Callejo, Sr., JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 118435 June 20, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARIO SERZO, JR., accused-appellant.

PANGANIBAN, J.:
The right to counsel of an accused is guaranteed by our Constitution, our laws and our Rules of Court. During
custodial investigation, arraignment, trial and even on appeal, the accused is given the option to be
represented by a counsel of his choice. But when he neglects or refuses to exercise this option during
arraignment and trial, the court shall appoint one for him. While the right to be represented by counsel is
absolute, the accused's option to hire one of his own choice is limited. Such option cannot be used to sanction
reprehensible dilatory tactics, to trifle with the Rules or to prejudice the equally important rights of the state and
the offended party to speedy and adequate justice.
This will be amplified in this appeal seeking the reversal of the August 23, 1994 Decision of the Regional Trial
Court of Antipolo, Rizal, Branch 72, 1 in Criminal Case No. 90-5997 convicting Appellant Mario Serzo, Jr. of
murder under Article 248 of the Revised Penal Code.
Appellant was charged with murder in an Information dated September 4, 1990 filed by Rizal Assistant
Provincial Prosecutor Filipinas Z. Aguilar-Ata, worded as follows: 2
That on or about the 22nd day of August, 1990, in the Municipality of Antipolo, Province of Rizal,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
armed with bladed weapon, with intent to kill, with treachery, did then and there willfully,
unlawfully and feloniously attack, assault and stab one Alfredo Alcantara y Casabal at the back,
thereby inflicting upon him stab wounds which directly caused his death.
Thereafter, pre-trial was waived and the case proceeded to trial on the merits. After arraignment and trial,
appellant was found guilty as charged and sentenced thus: 3
WHEREFORE, on the basis of the foregoing, the Court finds accused GUILTY BEYOND
REASONABLE DOUBT of having committed the crime of MURDER and as prescribed under
Article 248 of the Revised Penal Code, hereby sentences accused to suffer the penalty
of reclusion perpetua and to indemnify the victim's wife in the amount of FIFTY THOUSAND
PESOS (P50,000.00) as actual damages and TWENTY FIVE THOUSAND PESOS
(P25,000.00) as moral damages and costs.
The Antecedents
Summarizing the testimonies of Adelaida Alcantara (the victim's widow), Medico-Legal Officer Dario L. Gajardo
and Epifania Andrade, the trial court found the following facts: 4
Alfredo Alcantara Y Casabal never knew that death was just around the corner inevitably
meeting his way. That fateful night of August 22, 1990, Alfredo together with his wife Adelaida
Alcantara were (sic) staying inside their house comfortably watching television when at around
11:30 in the evening, Susana Serzo, mother of the accused, and one Epifania Bentilacion came

knocking at their doorsteps and pleading for help to bring out her grandchildren who were being
held inside their house by her son, the accused in this case. Unhesitatingly, the couple heeded
their call and went with them at (sic) their house, located just across the private complainant's
residence. The spouses were able to rescue the grandchildren and to bring them to a safer
place. When returning to their house, Alfredo Alcantara who was walking just armslength ahead
of his wife, was attacked by accused Mario Serzo from behind. Accused stabbed Alfredo at his
back forcing the latter to scamper for his dear life. However, accused was able to overpower him
thereby causing his fall in the canal where he was repeatedly stabbed by the accused. Adelaida
Alcantara shouted for help but was likewise attacked by the accused as she was only half-meter
away from her husband. However, Adelaida fortunately was able to hold the hand of the
knifewielder and persistently fought the accused. (p. 05 TSN June 3, 1991) At that moment, the
commotion had already caught the attention of the residents within the vicinity who responded
to help her thereby causing the accused to flee. The victim Alfredo Alcantara, who remained
lying and motionless in the canal, was rushed to the hospital where he was confirmed dead. (p.
06 TSN June 3, 1991) The Medico-legal Officer, Dr. Dario Gajardo, testified in Court that the
victim sustained three (3) stab wounds, two at the back and one in his chest, which
instantaneously caused the victim's death. (p. 04 TSN May 13, 1991)
In view of appellant's allegation that he was denied his right to counsel, a narration of the proceedings before
the trial court is now in order. Arraignment was set by the trial court on January 8, 1991, during which appellant
appeared without counsel. Consequently, the trial court appointed Atty. Wilfredo Lina-ac as counsel de
oficio for the arraignment only. Appellant, however, moved that the arraignment be reset and that he be given
time to engage a counsel of his own choice, which the trial court granted. 5
On February 11, 1991, appellant appeared without a counsel de parte. He was nonetheless arraigned with the
assistance of Counsel de oficio Wilfredo Lina-ac. 6 He pleaded "not guilty." Pre-trial was waived and trial was
set on April 22, May 6 and 13, 1991 for the reception of the prosecution evidence and June 3 and 17, 1991 for
the defense.
The hearings scheduled on April 22, 1991 and May 6, 1991 were cancelled on motion of Public Prosecutor
Robert H. Tobia. 7 On both dates, appellant appeared with Atty. Lina-ac. On May 13 and June 3, 1991, trial
proceeded with the testimonies of prosecution witnesses. On behalf of appellant, Atty. Lina-ac cross-examined
the said witnesses.
On June 17, 1991, trial was again cancelled as appellant appeared without counsel. 8 On August 13, 1991, the
prosecution rested its case. 9
On November 4 and 11, 1991, presentation of evidence for the defense was reset as appellant was not ready
to testify 10 and he manifested his intention to secure the services of a counsel de parte. 11 On March 3, 1992,
Atty. Lina-ac was relieved as counsel de oficio in view of appellant's manifestation and refusal to cooperate
with said counsel. 12 On April 6, 1992 appellant appeared without counsel, forcing the trial court to appoint
another counsel de oficio, Bella Antonano. Counsels for both parties agreed to reset the trial, but appellant
refused to sign the minutes of the proceedings. 13
On April 27, 1992, 14 over vehement objection from the prosecution, hearing was reset for the last time as
appellant was still looking for a counsel de parte. 15 On August 25, 1992, appellant appeared without counsel;
thus, the trial court appointed Atty. Bonifacia Garcia of the Public Attorney's Office (PAO) as appellant's
counsel de oficio. Again, trial was postponed. 16 On September 1 and October 19, 1992, trial was postponed on
motion of Atty. Garcia. 17 Appellant again refused to sign the minutes of the proceedings for both trial dates. On
November 5, 1992, appellant refused to cooperate with Atty. Garcia by declining to take the witness stand,
forcing the defense to rest its case. 18 Both parties were ordered to submit their respective memoranda in ten
days, after which the case would be submitted for decision. Atty. Garcia was further ordered to manifest within

the same period whether appellant would change his mind and cooperate with her. No memorandum or
manifestation was ever filed by appellant.
Appellant wrote Judge Angeles three times within the period beginning December 16, 1992 until April 2, 1993,
seeking legal advice and the early resolution of the case. Branch Clerk of Court Melchisedek A. Guan replied
to him twice, informing him that Judge Angeles was prohibited by law from giving legal advice to litigants in
cases pending in his court and that a decision was forthcoming. On July 13, 1994, appellant wrote Deputy
Court Administrator Reynaldo L. Suarez, asking for the early resolution of his case. 19 The latter referred said
letter to Judge Angeles for appropriate action.
Thereafter, the assailed Decision convicting appellant of murder was promulgated on August 23, 1994.
Ruling of the Trial Court
In its Decision, the trial court noted that appellant simply refused to secure the services of a counsel de
parte and to present evidence in his defense despite ample opportunity accorded to him. Said the trial court:
The defense particularly the accused assisted by counsel however refused to present any
evidence despite several opportunities afforded by the Court. As early as the arraignment stage,
accused refused to be assisted by a counsel de oficio from the Public Attorney's Office (PAO)
insisting that he be assisted by a counsel of his own choice. For several settings, accused and
her (sic) mother were allowed to secure the services of a counsel de parte. However, they failed
to present one. Hence, the Court, to avoid further delay in the proceedings of the case, was
constrained to assign a counsel de oficio from the PAO.
During the presentation of evidence for the defense, accused and counsel could not present any
witness as accused refused to cooperate and to testify in Court. Hence, the defense waived its
right to present any evidence.
Considering that this case has been dragging for several years already . . . the court . . .
afforded the defense another opportunity to present its case by submitting its memorandum
simultaneously with the Prosecution. Thereafter, the case was submitted for decision. 20
Consequently, the trial court convicted appellant on the basis of the evidence presented by the prosecution.
Appellant was positively identified as the assailant by the widow, Adelaida Alcantara, who survived his attack.
In her distinct and vivid narration of the sequence of events leading to the murder, she showed that the attack
was treacherous as the victim was stabbed at the back and without warning.
Not satisfied with the trial court's Decision, appellant through Counsel Carmelo L. Arcilla
Court.

21

appealed to this

Assignment of Errors
In his Brief filed by Atty. Arcilla, appellant questions his conviction for murder based on the following alleged
errors on the part of the trial court: 22
I
The lower court erred in not giving the defendant-appellant time to engage counsel of his own
choice.
II

The lower court erred in not affording the defendant-appellant the chance to present evidence
for his defense.
III
The lower court erred in not acquitting the defendant-appellant.
Mainly, appellant alleges that he had been denied effective legal representation. His thesis is that the trial court
did not give him enough time to engage a counsel de parte, effectively depriving him of the chance to present
evidence in his defense. In fact, the scant five-page Appellant's Brief was dedicated entirely to this argument
without contesting the facts found by the trial court.
The Court's Ruling
The right of an accused to counsel is guaranteed by the Constitution, the supreme law of the land. This right is
granted to minimize the imbalance in the adversarial system where the accused is pitted against the awesome
prosecutory machinery of the state. In the words of Justice Black, 23 this is a "recognition . . . that an average
(accused) does not have the professional skill to protect himself . . . before a tribunal with power to take his life
or liberty, wherein
the (prosecutor) is . . . an experienced and learned counsel." In Powell vs. Alabama, 24 Mr. Justice Sutherland
wrote at greater length on why an accused needs a competent counsel:
Even the intelligent and educated layman has small and sometimes no skill in the science of
law. If charged with crime, he is incapable, generally, of determining for himself whether the
indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of
counsel he may be put on trial without a proper charge, and convicted upon incompetent
evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill
and knowledge adequately to prepare his defense, even though he has a perfect one. He
requires the guiding hand of counsel at every step in the proceedings against him. Without it,
though he be not guilty, he faces the danger of conviction because he does not know how to
establish his innocence.
The right covers the period beginning from custodial investigation, well into the rendition of judgment, 25 and
even on appeal. Article III of the 1987 Constitution provides this right to an accused not only during trial but
even before an information is filed. It provides:
Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right
to be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of
counsel.
Sec. 14 (1) No person shall be held to answer for a criminal offense without due process of law.
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel, . . .
With these precepts as springboard, the Rules of Court grants an accused the right to counsel under the
following provisions, viz.:
RULE 112

PRELIMINARY INVESTIGATION
xxx xxx xxx
Sec. 7. When accused lawfully arrested without warrant. . . .
However, before the filing of such complaint or information, the person arrested may ask for a
preliminary investigation by a proper officer in accordance with this Rule, but he must sign a
waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the
assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his
choice. . . . .
xxx xxx xxx
RULE 113
ARREST
Sec. 14. Right of attorney or relative to visit person arrested. Any member of the bar shall, at
the request of the person arrested or of another acting in his behalf, have the right to visit and
confer privately with such person, in the jail or any other place of custody at any hour of the day
or, in urgent cases, of the night. This right shall also be exercised by any relative of the person
arrested subject to reasonable regulation.
Rule 115
RIGHTS OF ACCUSED
Sec. 1. Rights of accused at the trial. In all criminal prosecutions, the accused shall be
entitled:
xxx xxx xxx
(c) To be present and defend in person and by counsel at every stage of the proceedings, from
the arraignment to the promulgation of the judgment. . . . .
xxx xxx xxx
Rule 116 of the Rules of Court makes it compulsory that the trial court inform the accused of his right to
counsel prior to arraignment, thus:
Sec. 6. Duty of court to inform accused of his right to counsel. Before arraignment, the court
shall inform the accused of his right to counsel and shall ask him if he desires to have one.
Unless the accused is allowed to defend himself in person, or he has employed counsel of his
choice, the court must assign a counsel de oficio to defend him.
Sec. 7. Appointment of counsel de oficio. The court, considering the gravity of the offense
and the difficulty of the questions that may arise, shall appoint as counsel de oficio only such
members of the bar in good standing who, by reason of their experience and ability may
adequately defend the accused. But in localities where such members of the bar are not
available, the court may appoint any person, resident of the province and of good repute for
probity and ability, to defend the accused.

Even on appeal, the accused is still afforded the right to counsel under Rule 122: 26
Sec. 13. Appointment of counsel de oficio for accused on appeal. It shall be the duty of the
clerk of the trial court upon the presentation of a notice of appeal in a criminal case, to ascertain
from the appellant, if he be confined in prison, whether he desires the Court of Appeals or the
Supreme Court to appoint a counsel to defend him de oficio and to transmit with the record,
upon a form to be prepared by the clerk of the appellate court, a certificate of compliance with
this duty and of the response of the appellant to his inquiry.
The foregoing is buttressed by another provision in Rule 124:
Sec. 2. Appointment of counsel de oficio for the accused. If it appears from the record of the
case as transmitted: (a) that the accused is confined in prison, (b) without counsel de parte on
appeal, and (c) signed the notice of appeal himself, then the clerk of the Court of Appeals shall
designate a member of the bar to defend him, such designation to be made by rotation, unless
otherwise directed by order of the court.
An accused-appellant not confined in prison shall not be entitled to a counsel de oficio, unless
the appointment of such counsel is requested in the appellate court within ten (10) days from
receipt of the notice to file brief and the right thereto is established by affidavit.
Recently, Republic Act No. 7438 was enacted providing, inter alia, that any person arrested, detained or under
custodial investigation shall at all times be assisted by counsel.
A deprivation of the right to counsel divests the accused of an equality in arms resulting in the denial of a level
playing field, so to speak. In a previous case, this Court held that an accused was deprived of his right to
counsel when he retained the services of a person who misrepresented himself as a lawyer. 27 In People
vs. Malunsing, 28retrial was ordered on the ground that petitioner was denied his constitutional right to counsel.
Very old and unlettered, he was shown not to have understood what was going on during the trial. In said case,
although the lawyer of his co-accused was appointed as his counsel, petitioner was not properly apprised by
said court of his right to be assisted by counsel. No evidence was presented for and on his behalf and the trial
court did not even bother to inquire why he did not take the witness stand when all the other defendants were
presented as witnesses.
This is the legal backdrop against which appellant's allegation of deprivation of his right to counsel shall be
measured.
Right to Counsel De Parte Is Not Absolute
Accordingly, an accused may exercise his right to counsel by electing to be represented either by a courtappointed lawyer or by one of his own choice. While his right to be represented by counsel is immutable, his
option to secure the services of counsel de parte, however, is not absolute. The court is obliged to balance the
privilege to retain a counsel of choice against the states's and the offended party's equally important right to
speedy and adequate justice. Thus, the court may restrict the accused's option to retain a counsel de parte if
the accused insists on an attorney he cannot afford, or the chosen counsel is not a member of the bar, or the
attorney declines to represent the accused for a valid reason, e.g. conflict of interest and the like. 29
Also, the right to counsel de parte is, like other personal rights,
waivable 30 so long as (1) the waiver is not contrary to law, public order, public policy, morals or good customs;
or prejudicial to a third person with a right recognized by law 31 and (2) the waiver is unequivocally, knowingly
and intelligently made. 32

In Sayson vs. People, 33 this Court held that the duty of the court to appoint a counsel de oficio is not
mandatory where the accused has proceeded with the arraignment and the trial with a counsel of his choice
but, when the time for the presentation of the evidence for the defense was due, he appears by himself alone
because of the inexcusable absence of his counsel. In another case, this Court held that the right to be heard
and to reopen the case (and send it to trial anew) could not be allowed if doing so would sanction a plainly
dilatory tactic and a reprehensible trifling with the orderly administration of justice. 34
In the present case, appellant claims that he was not given sufficient time to engage a counsel de parte,
thereby preventing him from presenting evidence in his defense. In his Brief he adds, but without giving
particulars or proof, that allegedly his counsels de oficio did not exert their "utmost efforts" in representing him,
thus: 35
. . . (T)he lower court afforded the accused the assistance of counsel de oficio as early as the
arraignment stage but failed to show that utmost efforts were exerted by said counsel to defend
the life and liberty of the accused. The duty of the court is not ended with such appointment,
however, as it should also see to it that the counsel does his duty by the defendant. Counsel de
oficio should not merely make the motions of defending the accused but exert his utmost efforts
as if he were representing a paying client.
The Solicitor General, in his eleven-page Brief, 36 rebuts this, arguing that appellant's actions during the trial
showed instead a "lackadaisical stance on his own defense."
Appellant had been given ample time to secure the services of a counsel de parte, but his subsequent
appearances in court without such counsel and his act of allowing this situation to continue until the
presentation of his evidence betrays his lack of intention to do so. It even appears that he was merely delaying
his own presentation of evidence on purpose to the prejudice of the offended party, the trial court and the
orderly administration of justice.
Furthermore, appellant did not demonstrate in what way the services of his counsels de oficio were
unsatisfactory. He did not cite any instance substantiating his claim that he was not effectively represented. In
short, he was afforded a chance to be heard by counsel of his own choice, but by his own neglect or mischief,
he effectively waived such right. It taxes the mind to think that, almost two years 37 since appellant first invoked
his right to be represented by counsel de parte, he still could not find one who would suit his needs and
desires. Neither did he cooperate with his court-named lawyers.
The facts of this case do not constitute a deprivation of appellant's constitutional right to counsel because he
was adequately represented by three court-appointed lawyers: Atty. Lina-ac, Atty. Antonano and Atty. Garcia.
Courts are not required to await indefinitely the pleasure and convenience of the accused as they are also
mandated to promote the speedy and orderly administration of justice. Nor should they countenance such an
obvious trifling with the rules. Indeed, public policy requires that the trial continue as scheduled, considering
that appellant was adequately represented by counsels who were not shown to be negligent, incompetent or
otherwise unable to represent him.
Crime and Punishment
In spite of appellant's failure, either through negligence or unreasonable refusal, to impute errors to the
assailed Decision other than the alleged violation of his right to counsel this Court nonetheless scoured
the records of the trial, perused the transcripts of the testimony of the witnesses for the prosecution, evaluated
the evidence and examined the applicable laws and jurisprudence to determine the correctness of the trial
court's Decision. We, however, find no cogent reason to reverse the conviction of appellant. In a case of
murder or homicide, it is enough that the death of the victim and the responsibility of the person who caused
such death are proven 38beyond reasonable doubt. Both elements were duly established by the prosecution

witnesses. Dr. Gajardo testified to the fact of death while Widow Adelaida Alcantara positively identified the
appellant as the assailant.
Based on the facts established by the prosecution which remain uncontested, the Court affirms the trial court's
appreciation of the qualifying circumstance of treachery. To constitute treachery, two conditions must concur:
(1) the employment of means of execution that gives the person attacked no opportunity to defend himself or to
retaliate and (2) deliberate or conscious adoption of the means of execution. 39 The manner of the attack itself
is proof enough of alevosia. Widow Adelaida vividly described the stabbing as
follows: 40
Q: And you said a certain Suzana Serzo together with one Epifania Bentilacion
came to your house and asked for help from you, is that right?
A: Yes, sir.
Q: And that you responded for help Mrs. witness?
A: Yes, sir.
Q: And you are together with your husband in helping Suzana Serzo?
A: Yes, sir.
Q: What was the help she was asking Mrs. witness?
xxx xxx xxx
A: She was asking to help her children being held by Mario Serzo by not letting
them go out of the house.
xxx xxx xxx
Q: Were you able to help the grandchildren of Suzana Serzo?
A: Yes, sir.
Q: And after you help (sic) them what happened next?
A: We brought them to where they could hide and then we went home.
Q: You said you heard somebody approaching you at the back through the sound
of his footsteps is that right?
A: Yes, sir.
xxx xxx xxx
Q: What happened next after you hear (sic) those footsteps at your back?
A: My husband was just beside me.
Q: And immediately your husband was stabbed by the accused?

A: Yes, sir.
From this testimony, it appears that appellant waited for the victim and his wife and pounced on them swiftly
and without warning. The victim and his wife were already on their way home after transferring appellant's
children to a safe place. They were unarmed as they had absolutely no idea that appellant would attack them
right then and from behind. The manner of the attack tended directly and especially to insure the execution of
the crime without risk to appellant and virtually no chance for the victim to defend himself. 41 Even Adelaida's
life would have been mortally threatened were it not for the timely intervention of her neighbors.
Damages and Indemnity
Actual and moral damages require the presentation of proof before they can be awarded by the trial
court. 42According to Adelaida, burial expenses in the amount of P2,000.00 were incurred. 43 This is separate
and distinct from civil indemnity awarded under prevailing jurisprudence, which is granted without further proof
beyond the fact of death and the accused's responsibility therefor. Moral damages were not discussed at all in
Adelaida's testimony. Hence, without any factual basis, the award of moral damages is not justified.
WHEREFORE, the assailed Decision is hereby AFFIRMED, but the award of moral damages is DELETED.
Instead, appellant is ORDERED TO PAY the amount of P50,000.00 as civil indemnity and actual damages of
P2,000.00 as burial expenses.
SO ORDERED.
Narvasa, C.J., Davide, Jr. and Melo, JJ., concur.
Francisco, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

A.M. No. MTJ-96-1088 July 19, 1996

RODOLFO G. NAVARRO, complainant,
vs.
JUDGE HERNANDO C. DOMAGTOY, respondent.

ROMERO, J.:p
The complainant in this administrative case is the Municipal Mayor of Dapa, Surigao del Norte, Rodolfo G.
Navarro. He has submitted evidence in relation to two specific acts committed by respondent Municipal Circuit
Trial Court Judge Hernando Domagtoy, which, he contends, exhibits gross misconduct as well as inefficiency
in office and ignorance of the law.
First, on September 27, 1994, respondent judge solemnized the wedding between Gaspar A. Tagadan and
Arlyn F. Borga, despite the knowledge that the groom is merely separated from his first wife.
Second, it is alleged that he performed a marriage ceremony between Floriano Dador Sumaylo and Gemma G.
del Rosario outside his court's jurisdiction on October 27, 1994. Respondent judge holds office and has
jurisdiction in the Municipal Circuit Trial Court of Sta. Monica-Burgos, Surigao del Norte. The wedding was
solemnized at the respondent judge's residence in the municipality of Dapa, which does not fall within his
jurisdictional area of the municipalities of Sta. Monica and Burgos, located some 40 to 45 kilometers away from
the municipality of Dapa, Surigao del Norte.
In his letter-comment to the office of the Court Administrator, respondent judge avers that the office and name
of the Municipal Mayor of Dapa have been used by someone else, who, as the mayor's "lackey," is overly
concerned with his actuations both as judge and as a private person. The same person had earlier filed

Administrative Matter No 94-980-MTC, which was dismissed for lack of merit on September 15, 1994, and
Administrative Matter No. OCA-IPI-95-16, "Antonio Adapon v. Judge Hernando C. Domagtoy," which is still
pending.
In relation to the charges against him, respondent judge seeks exculpation from his act of having solemnized
the marriage between Gaspar Tagadan, a married man separated from his wife, and Arlyn F. Borga by stating
that he merely relied on the Affidavit issued by the Municipal Trial Judge of Basey, Samar, confirming the fact
that Mr. Tagadan and his first wife have not seen each other for almost seven years. 1 With respect to the
second charge, he maintains that in solemnizing the marriage between Sumaylo and del Rosario, he did not
violate Article 7, paragraph 1 of the Family Code which states that: "Marriage may be solemnized by: (1) Any
incumbent member of the judiciary within the court's jurisdiction;" and that article 8 thereof applies to the case
in question.
The complaint was not referred, as is usual, for investigation, since the pleadings submitted were considered
sufficient for a resolution of the case. 2
Since the countercharges of sinister motives and fraud on the part of complainant have not been sufficiently
proven, they will not be dwelt upon. The acts complained of and respondent judge's answer thereto will suffice
and can be objectively assessed by themselves to prove the latter's malfeasance.
The certified true copy of the marriage contract between Gaspar Tagadan and Arlyn Borga states that
Tagadan's civil status is "separated." Despite this declaration, the wedding ceremony was solemnized by
respondent judge. He presented in evidence a joint affidavit by Maurecio A. Labado, Sr. and Eugenio Bullecer,
subscribed and sworn to before Judge Demosthenes C. Duquilla, Municipal Trial Judge of Basey, Samar. 3 The
affidavit was not issued by the latter judge, as claimed by respondent judge, but merely acknowledged before
him. In their affidavit, the affiants stated that they knew Gaspar Tagadan to have been civilly married to Ida D.
Pearanda in September 1983; that after thirteen years of cohabitation and having borne five children, Ida
Pearanda left the conjugal dwelling in Valencia, Bukidnon and that she has not returned nor been heard of for
almost seven years, thereby giving rise to the presumption that she is already dead.
In effect, Judge Domagtoy maintains that the aforementioned joint affidavit is sufficient proof of Ida
Pearanda's presumptive death, and ample reason for him to proceed with the marriage ceremony. We do not
agree.
Article 41 of the Family Code expressly provides:
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 spouse had been
absent for four consecutive years and the spouse present had a well-founded belief that the
absent spouse was already dead. In case of disappearance where there is danger of death
under the circumstances set forth in the provisions of Articles 391 of the Civil Code, an absence
of only two years shall be sufficient.
For the purpose of contracting the 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. (Emphasis added.)
There is nothing ambiguous or difficult to comprehend in this provision. In fact, the law is clear and simple.
Even if the spouse present has a well-founded belief that the absent spouse was already dead, a summary
proceeding for the declaration of presumptive death is necessary in order to contract a subsequent marriage, a
mandatory requirement which has been precisely incorporated into the Family Code to discourage subsequent

marriages where it is not proven that the previous marriage has been dissolved or a missing spouse is factually
or presumptively dead, in accordance with pertinent provisions of law.
In the case at bar, Gaspar Tagadan did not institute a summary proceeding for the declaration of his first wife's
presumptive death. Absent this judicial declaration, he remains married to Ida Pearanda. Whether wittingly or
unwittingly, it was manifest error on the part of respondent judge to have accepted the joint affidavit submitted
by the groom. Such neglect or ignorance of the law has resulted in a bigamous, and therefore void, marriage.
Under Article 35 of the Family Code, " The following marriage shall be void from the beginning: (4) Those
bigamous . . . marriages not falling under Article 41."
The second issue involves the solemnization of a marriage ceremony outside the court's jurisdiction, covered
by Articles 7 and 8 of the Family Code, thus:
Art. 7. Marriage may be solemnized by :
(1) Any incumbent member of the judiciary within the court's jurisdiction;
xxx xxx xxx (Emphasis supplied.)
Art. 8. The marriage shall be solemnized publicly in the chambers the judge or in open court, in
the church, chapel or temple, or in the office of the consul-general, consul or vice-consul, as the
case may be, and not elsewhere, except in cases of marriages contracted on the point of death
or in remote places in accordance with Article 29 of this Code, or where both parties request the
solemnizing officer in writing in which case the marriage may be solemnized at a house or place
designated by them in a sworn statement to that effect.
Respondent judge points to Article 8 and its exceptions as the justification for his having solemnized the
marriage between Floriano Sumaylo and Gemma del Rosario outside of his court's jurisdiction. As the
aforequoted provision states, a marriage can be held outside of the judge's chambers or courtroom only in the
following instances: (1) at the point of death, (2) in remote places in accordance with Article 29 or (3) upon
request of both parties in writing in a sworn statement to this effect. There is no pretense that either Sumaylo
or del Rosario was at the point of death or in the remote place. Moreover, the written request presented
addressed to the respondent judge was made by only one party, Gemma del Rosario. 4
More importantly, the elementary principle underlying this provision is the authority of the solemnizing judge.
Under Article 3, one of the formal requisites of marriage is the "authority of the solemnizing officer." Under
Article 7, marriage may be solemnized by, among others, "any incumbent member of the judiciary within the
court's jurisdiction." Article 8, which is a directory provision, refers only to the venue of the marriage ceremony
and does not alter or qualify the authority of the solemnizing officer as provided in the preceding provision.
Non-compliance herewith will not invalidate the marriage.
A priest who is commissioned and allowed by his local ordinary to marry the faithful, is authorized to do so only
within the area of the diocese or place allowed by his Bishop. An appellate court Justice or a Justice of this
Court has jurisdiction over the entire Philippines to solemnize marriages, regardless of the venue, as long as
the requisites of the law are complied with. However, judges who are appointed to specific jurisdictions, may
officiate in weddings only within said areas and not beyond. Where a judge solemnizes a marriage outside his
court's jurisdiction, there is a resultant irregularity in the formal requisite laid down in Article 3, which while it
may not affect the validity of the marriage, may subject the officiating official to administrative liability. 5
Inasmuch as respondent judge's jurisdiction covers the municipalities of Sta. Monica and Burgos, he was not
clothed with authority to solemnize a marriage in the municipality of Dapa, Surigao del Norte. By citing Article 8

and the exceptions therein as grounds for the exercise of his misplaced authority, respondent judge again
demonstrated a lack of understanding of the basic principles of civil law.
Accordingly, the Court finds respondent to have acted in gross ignorance of the law. The legal principles
applicable in the cases brought to our attention are elementary and uncomplicated, prompting us to conclude
that respondent's failure to apply them is due to a lack of comprehension of the law.
The judiciary should be composed of persons who, if not experts, are at least, proficient in the law they are
sworn to apply, more than the ordinary laymen. They should be skilled and competent in understanding and
applying the law. It is imperative that they be conversant with basic legal principles like the ones involved in
instant case. 6 It is not too much to expect them to know and apply the law intelligently. 7 Otherwise, the system
of justice rests on a shaky foundation indeed, compounded by the errors committed by those not learned in the
law. While magistrates may at times make mistakes in judgment, for which they are not penalized, the
respondent judge exhibited ignorance of elementary provisions of law, in an area which has greatly prejudiced
the status of married persons.
The marriage between Gaspar Tagadan and Arlyn Borga is considered bigamous and void, there being a
subsisting marriage between Gaspar Tagadan and Ida Pearanda.
The Office of the Court Administrator recommends, in its Memorandum to the Court, a six-month suspension
and a stern warning that a repetition of the same or similar acts will be dealt with more severely. Considering
that one of the marriages in question resulted in a bigamous union and therefore void, and the other lacked the
necessary authority of respondent judge, the Court adopts said recommendation. Respondent is advised to be
more circumspect in applying the law and to cultivate a deeper understanding of the law.
IN VIEW OF THE FOREGOING, respondent Judge Hernando C. Domagtoy is hereby SUSPENDED for a
period of six (6) months and given a STERN WARNING that a repetition of the same or similar acts will be
dealt with more severely.
Regalado, Puno, Mendoza and Torres, Jr., JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
A.M. No. 99-1211
January 28, 2000
(Formerly OCA-IPI No. 98-471-MTJ)
ZENAIDA S. BESO, complainant,
vs.
Judge JUAN DAGUMAN, MCTC, Sta. Margarita-Tarangan-Pagsanjan, Samar, respondent.
YNARES-SANTIAGO, J.:
In this administrative complaint, respondent Judge stands charged with Neglect of Duty and Abuse of Authority.
In a Complaint-Affidavit dated December 12, 1997, Zenaida S. Beso charged Judge Juan J. Daguman, Jr. with
solemnizing marriage outside of his jurisdiction and of negligence in not retaining a copy and not registering
the marriage contract with the office of the Local Registrar alleging
a. That on August 28, 1997, I and my fiancee (sic) BERNARDITO A. YMAN got married and our
marriage was solemnized by judge (sic) Juan Daguman in his residence of J.P.R. Subdivision in
Calbayog City, Samar; . . .
b. That the ceremony was attended by PACIFICO MAGHACOT who acted as our principal sponsor and
spouses RAMON DEAN and TERESITA DEAN; . . .

c. That after our wedding, my husband BERNARDITO YMAN abandoned me without any reason at all;
d. That I smell something fishy; so what I did was I went to Calbayog City and wrote the City Civil
Registrar to inquire my Marriage Contract;
e. That to my surprise, I was informed by the Local Civil Registrar of Calbayog City that my marriage
was not registered; . . .
f. That upon advisement of the Local Civil Registrar; I wrote Judge Juan Daguman, to inquire;
g. That to my second surprise, I was informed by Judge Daguman that all the copies of the Marriage
Contract were taken by Oloy (Bernardito A. Yman);
h. That not copy was retained by Judge Daguman;
i. That I believe that the respondent judge committed acts prejudicial to my interest such as:
1. Solemnizing our marriage outside his jurisdiction;
2. Negligence in not retaining a copy and not registering our marriage before the office of the
Local Civil Registrar.
The Affidavit-Complaint was thereafter referred to respondent Judge for comment.
In his Comment, respondent Judge averred that:
1. The civil marriage of complainant Zenaida Beso and Bernardito Yman had to be solemnized by
respondent in Calbayog City though outside his territory as municipal Judge of Sta. Margarita, Samar
due to the following and pressing circumstances:
1.1. On August 28, 1997 respondent was physically indisposed and unable to report to his
station in Sta. Margita. In the forenoon of that date, without prior appointment, complainant Beso
and Mr. Yman unexpectedly came to the residence of respondent in said City, urgently
requesting the celebration of their marriage right then and there, first, because complainants
said she must leave that same day to be able to fly from Manila for abroad as
scheduled; second, that for the parties to go to another town for the marriage would be
expensive and would entail serious problems of finding a solemnizing officer and another pair of
witnesses or sponsors, while in fact former Undersecretary Pacifico Maghacot, Sangguniang
Panglunsod [member] Ramon Dean were already with them as sponsors; third, if they failed to
get married on August 28, 1997, complainant would be out of the country for a long period and
their marriage license would lapse and necessitate another publication of notice; fourth, if the
parties go beyond their plans for the scheduled marriage, complainant feared it would
complicate her employment abroad; and, last, all other alternatives as to date and venue of
marriage were considered impracticable by the parties;
1.2. The contracting parties were ready with the desired cocuments (sic) for a valid marriage,
which respondent found all in order.1wphi1.nt
1.3. Complainant bride is an accredited Filipino overseas worker, who, respondent realized,
deserved more than ordinary official attention under present Government policy.

2. At the time respondent solemnized the marriage in question, he believed in good faith that by so
doing he was leaning on the side of liberality of the law so that it may be not be too expensive and
complicated for citizens to get married.
3. Another point brought up in the complaint was the failure of registration of the duplicate and triplicate
copies of the marriage certificate, which failure was also occasioned by the following circumstances
beyond the control of respondent:
3.1. After handling to the husband the first copy of the marriage certificate, respondent left the
three remaining copies on top of the desk in his private office where the marriage ceremonies
were held, intending later to register the duplicate and triplicate copies and to keep the forth
(sic) in his office.
3.2. After a few days following the wedding, respondent gathered all the papers relating to the
said marriage but notwithstanding diligent search in the premises and private files, all the three
last copies of the certificate were missing. Promptly, respondent invited by subpoena . . . . Mr.
Yman to shed light on the missing documents and he said he saw complainant Beso put the
copies of the marriage certificate in her bag during the wedding party. Unfortunately, it was too
late to contract complainant for a confirmation of Mr. Yman's claim.
3.3. Considering the futility of contracting complainant now that she is out of the country, a
reasonable conclusion can be drawn on the basis of the established facts so far in this dispute.
If we believe the claim of complainant that after August 28, 1997 marriage her husband, Mr.
Yman, abandoned her without any reason . . . but that said husband admitted "he had another
girl by the name of LITA DANGUYAN" . . . it seems reasonably clear who of the two marriage
contracting parties probably absconded with the missing copies of the marriage certificate.
3.4. Under the facts above stated, respondent has no other recourse but to protect the public
interest by trying all possible means to recover custody of the missing documents in some
amicable way during the expected hearing of the above mentioned civil case in the City of
Marikina, failing to do which said respondent would confer with the Civil Registrar General for
possible registration of reconstituted copies of said documents.
The Office of the Court Administrator (OCA) in an evaluation report dated August 11, 1998 found that
respondent Judge ". . . committed non-feasance in office" and recommended that he be fined Five Thousand
Pesos (P5,000.00) with a warning that the commission of the same or future acts will be dealt with more
severely pointing out that:
As presiding judge of the MCTC Sta. Margarita Tarangnan-Pagsanjan, Samar, the authority to
solemnize marriage is only limited to those municipalities under his jurisdiction. Clearly, Calbayog City
is no longer within his area of jurisdiction.
Additionally, there are only three instances, as provided by Article 8 of the Family Code, wherein a
marriage may be solemnized by a judge outside his chamber[s] or at a place other than his sala, to wit:
(1) when either or both of the contracting parties is at the point of death;
(2) when the residence of either party is located in a remote place;
(3) where both of the parties request the solemnizing officer in writing in which case the
marriage may be solemnized at a house or place designated by them in a sworn statement to
that effect.

The foregoing circumstances are unavailing in the instant case.

Moreover, as solemnizing officer, respondent Judge neglected his duty when failed to register the
marriage of complainant to Bernardito Yman.
Such duty is entrusted upon him pursuant to Article 23 of the Family Code which provides:
It shall be the duty of the person solemnizing the marriage to furnish either of the contracting
parties the original of the marriage certificate referred to in Article 6 and to send the duplicate
and triplicate copies of the certificate not later than fifteen days after the marriage, to the local
civil register of the place where the marriage was solemnized. . . . (emphasis ours)
It is clearly evident from the foregoing that not only has the respondent Judge committed non-feasance
in office, he also undermined the very foundation of marriage which is the basic social institution in our
society whose nature, consequences and incidents are governed by law. Granting that respondent
Judge indeed failed to locate the duplicate and triplicate copies of the marriage certificate, he should
have exerted more effort to locate or reconstitute the same. As a holder of such a sensitive position, he
is expected to be conscientious in handling official documents. His imputation that the missing copies of
the marriage certificate were taken by Bernardito Yman is based merely on conjectures and does not
deserve consideration for being devoid of proof.
After a careful and thorough examination of the evidence, the Court finds the evaluation report of the OCA welltaken.
Jimenez v. Republic1 underscores the importance of marriage as a social institution thus: "[M]arriage in this
country is an institution in which the community is deeply interested. The state has surrounded it with
safeguards to maintain its purity, continuity and permanence. The security and stability of the state are largely
dependent upon it. It is the interest and duty of each and every member of the community to prevent the
bringing about a condition that would shake its foundation and untimely lead to its destruction."
With regard to the solemnization of marriage, Article 7 of the Family Code provides, among others, that
Art. 7. Marriage my be solemnized by:
(1) Any incumbent member of the judiciary within the court's jurisdiction; . . . (Emphasis ours)
In relation thereto, Article 8 of the same statute mandates that:
Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the
church, chapel or temple, or in the office of the counsel-general, consul or vice-consul, as the case may
be, and not elsewhere, except in cases of marriages contracted at the point of death or in remote
places in accordance with Article 29 of this Code, or were both parties request the solemnizing officer
in writing in which case the marriage may be solemnized at a house or place designated by them in a
sworn statement to that effect. (Emphasis ours)
As the above-quoted provision clearly states, a marriage can be held outside the judge's chambers or
courtroom only in the following instances: 1.] at the point of death; 2.] in remote places in accordance with
Article 29, or 3.] upon the request of both parties in writing in a sworn statement to this effect.
In this case, there is no pretense that either complainant Beso or her fianc Yman was at the point of death or
in a remote place. Neither was there a sworn written request made by the contracting parties to respondent
Judge that the marriage be solemnized outside his chambers or at a place other than his sala. What, in fact,

appears on record is that respondent Judge was prompted more by urgency to solemnize the marriage of Beso
and Yman because complainant was "[a]n overseas worker, who, respondent realized deserved more than
ordinary official attention under present Government policy." Respondent Judge further avers that in
solemnizing the marriage in question, "[h]e believed in good faith that by doing so he was leaning on the side
of liberality of the law so that it may not be too expensive and complicated for citizens to get married."
A person presiding over a court of law must not only apply the law but must also live and abide by it and render
justice at all times without resorting to shortcuts clearly uncalled for.2 A judge is not only bound by oath to apply
the law;3 he must also be conscientious and thorough in doing so.4 Certainly, judges, by the very delicate
nature of their office should be more circumspect in the performance of their duties.5
If at all, the reasons proffered by respondent Judge to justify his hurried solemnization of the marriage in this
case only tends to degrade the revered position enjoined by marriage in the hierarchy of social institutions in
the country. They also betray respondent's cavalier proclivity on its significance in our culture which is more
disposed towards an extended period of engagement prior to marriage and frowns upon hasty, ill-advised and
ill-timed marital unions.
An elementary regard for the sacredness of laws let alone that enacted in order to preserve so sacrosanct
an inviolable social institution as marriage and the stability of judicial doctrines laid down by superior
authority should have given respondent judge pause and made him more vigilant in the exercise of his
authority and the performance of his duties as a solemnizing officer. A judge is, furthermore, presumed to know
the constitutional limits of the authority or jurisdiction of his court.6 Thus respondent Judge should be reminded
that
A priest who is commissioned and allowed by his ordinary to marry the faithful, is authorized to do so
only within the area of the diocese or place allowed by is Bishop. An appellate court justice or a Justice
of this Court has jurisdiction over the entire Philippines to solemnize marriages, regardless of the
venue, as long as the requisites of the law are complied with. However, Judges who are appointed to
specific jurisdictions may officiate in weddings only within said areas and not beyond. Where a judge
solemnizes a marriage outside his court's jurisdiction, there is a resultant irregularity in the formal
requisite laid down in Article 3, which while it may not affect the validity of the marriage, may subject the
officiating official to administrative liability.7
Considering that respondents Judge's jurisdiction covers the municipality of Sta. Margarita-TaranganPagsanjan, Samar only, he was not clothed with authority to solemnize a marriage in the City of Calbayog.8
Furthermore, from the nature of marriage, aside from the mandate that a judge should exercise extra care in
the exercise of his authority and the performance of his duties in its solemnization, he is likewise commanded
to observance extra precautions to ensure that the event is properly documented in accordance with Article 23
of the Family Code which states in no uncertain terms that
Art. 23. It shall be the duty of the person solemnizing the marriage to furnish either of the contracting
parties, the original of the marriage contract referred to in Article 6 and to send the duplicate and
triplicate copies of the certificate not later than fifteen days after the marriage, to the local civil registrar
of the place where the marriage was solemnized. Proper receipts shall be issued by the local civil
registrar to the solemnizing officer transmitting copies of the marriage certificate. The solemnizing
officer shall retain in his file the quadruplicate copy of the marriage certificate, the original of the
marriage license and, in proper cases, the affidavit of the contracting party regarding the solemnization
of the marriage in a place other than those mentioned in Article 8. (Emphasis supplied)
In view of the foregoing, we agree with the evaluation of the OCA that respondent Judge was less than
conscientious in handling official documents. A judge is charged with exercising extra care in ensuring that the

records of the cases and official documents in his custody are intact. There is no justification for missing
records save fortuitous events.9 However, the records show that the loss was occasioned by carelessness on
respondent Judge's part. This Court reiterates that judges must adopt a system of record management and
organize their dockets in order to bolster the prompt and efficient dispatch of business.10 It is, in fact, incumbent
upon him to devise an efficient recording and filing system in his court because he is after all the one directly
responsible for the proper discharge of his official functions.11
In the evaluation report, the OCA recommended that respondent Judge be fined Five Thousand Pesos
(P5,000.00) and warned that a repetition of the same or similar acts will be dealt with more severely. This Court
adopts the recommendation of the OCA.1wphi1.nt
WHEREFORE, in view of all the foregoing, respondent Judge is hereby FINED Five Thousand Pesos
(P5,000.00) and STERNLY WARNED that a repetition of the same or similar infractions will be dealt with more
severely.
SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 103982 December 11, 1992
ANTONIO A. MECANO, petitioner,
vs.
COMMISSION ON AUDIT, respondent.

CAMPOS, JR., J.:

Antonio A. Mecano, through a petition for certiorari, seeks to nullify the decision of the Commission on Audit
(COA, for brevity) embodied in its 7th Indorsement, dated January 16, 1992, denying his claim for
reimbursement under Section 699 of the Revised Administrative Code (RAC), as amended, in the total amount
of P40,831.00.
Petitioner is a Director II of the National Bureau of Investigation (NBI). He was hospitalized for cholecystitis
from March 26, 1990 to April 7, 1990, on account of which he incurred medical and hospitalization expenses,
the total amount of which he is claiming from the COA.
On May 11, 1990, in a memorandum to the NBI Director, Alfredo S. Lim (Director Lim, for brevity), he
requested reimbursement for his expenses on the ground that he is entitled to the benefits under Section
699 1 of the RAC, the pertinent provisions of which read:
Sec. 699. Allowances in case of injury, death, or sickness incurred in performance of duty.
When a person in the service of the national government of a province, city, municipality or
municipal district is so injured in the performance of duty as thereby to receive some actual
physical hurt or wound, the proper Head of Department may direct that absence during any
period of disability thereby occasioned shall be on full pay, though not more than six months,
and in such case he may in his discretion also authorize the payment of the medical attendance,
necessary transportation, subsistence and hospital fees of the injured person. Absence in the
case contemplated shall be charged first against vacation leave, if any there be.
xxx xxx xxx
In case of sickness caused by or connected directly with the performance of some act in the line
of duty, the Department head may in his discretion authorize the payment of the necessary
hospital fees.
Director Lim then forwarded petitioner's claim, in a 1st Indorsement dated June 22, 1990, to the Secretary of
Justice, along with the comment, bearing the same date, of Gerarda Galang, Chief, LED of the NBI,
"recommending favorable action thereof". Finding petitioner's illness to be service-connected, the Committee
on Physical Examination of the Department of Justice favorably recommended the payment of petitioner's
claim.
However, then Undersecretary of Justice Silvestre H. Bello III, in a 4th Indorsement dated November 21, 1990,
returned petitioner's claim to Director Lim, having considered the statements of the Chairman of the COA in its
5th Indorsement dated 19 September 1990, to the effect that the RAC being relied upon was repealed by the
Administrative Code of 1987.
Petitioner then re-submitted his claim to Director Lim, with a copy of Opinion No. 73, S. 1991 2 dated April 26,
1991 of then Secretary of Justice Franklin M. Drilon (Secretary Drilon, for brevity) stating that "the issuance of
the Administrative Code did not operate to repeal or abregate in its entirety the Revised Administrative Code,
including the particular Section 699 of the latter".
On May 10, 1991, Director Lim, under a 5th Indorsement transmitted anew Mecano's claim to then
Undersecretary Bello for favorable consideration. Under a 6th Indorsement, dated July 2, 1991, Secretary
Drilon forwarded petitioner's claim to the COA Chairman, recommending payment of the same. COA Chairman
Eufemio C. Domingo, in his 7th Indorsement of January 16, 1992, however, denied petitioner's claim on the
ground that Section 699 of the RAC had been repealed by the Administrative Code of 1987, solely for the
reason that the same section was not restated nor re-enacted in the Administrative Code of 1987. He
commented, however, that the claim may be filed with the Employees' Compensation Commission, considering
that the illness of Director Mecano occurred after the effectivity of the Administrative Code of 1987.

Eventually, petitioner's claim was returned by Undersecretary of Justice Eduardo Montenegro to Director Lim
under a 9th Indorsement dated February 7, 1992, with the advice that petitioner "elevate the matter to the
Supreme Court if he so desires".
On the sole issue of whether or not the Administrative Code of 1987 repealed or abrogated Section 699 of the
RAC, this petition was brought for the consideration of this Court.
Petitioner anchors his claim on Section 699 of the RAC, as amended, and on the aforementioned Opinion No.
73, S. 1991 of Secretary Drilon. He further maintains that in the event that a claim is filed with the Employees'
Compensation Commission, as suggested by respondent, he would still not be barred from filing a claim under
the subject section. Thus, the resolution of whether or not there was a repeal of the Revised Administrative
Code of 1917 would decide the fate of petitioner's claim for reimbursement.
The COA, on the other hand, strongly maintains that the enactment of the Administrative Code of 1987 (Exec.
Order No. 292) operated to revoke or supplant in its entirety the Revised Administrative Code of 1917. The
COA claims that from the "whereas" clauses of the new Administrative Code, it can be gleaned that it was the
intent of the legislature to repeal the old Code. Moreover, the COA questions the applicability of the aforesaid
opinion of the Secretary of Justice in deciding the matter. Lastly, the COA contends that employment-related
sickness, injury or death is adequately covered by the Employees' Compensation Program under P.D. 626,
such that to allow simultaneous recovery of benefits under both laws on account of the same contingency
would be unfair and unjust to the Government.
The question of whether a particular law has been repealed or not by a subsequent law is a matter of
legislative intent. The lawmakers may expressly repeal a law by incorporating therein a repealing provision
which expressly and specifically cites the particular law or laws, and portions thereof, that are intended to be
repealed. 3 A declaration in a statute, usually in its repealing clause, that a particular and specific law, identified
by its number or title, is repealed is an express repeal; all others are implied repeals. 4
In the case of the two Administrative Codes in question, the ascertainment of whether or not it was the intent of
the legislature to supplant the old Code with the new Code partly depends on the scrutiny of the repealing
clause of the new Code. This provision is found in Section 27, Book VII (Final Provisions) of the Administrative
Code of 1987 which reads:
Sec. 27. Repealing Clause. All laws, decrees, orders, rules and regulations, or portions
thereof, inconsistent with this Code are hereby repealed or modified accordingly.
The question that should be asked is: What is the nature of this repealing clause? It is certainly not an express
repealing clause because it fails to identify or designate the act or acts that are intended to be
repealed. 5 Rather, it is an example of a general repealing provision, as stated in Opinion No. 73, S. 1991. It is
a clause which predicates the intended repeal under the condition that substantial conflict must be found in
existing and prior acts. The failure to add a specific repealing clause indicates that the intent was not to repeal
any existing law, unless an irreconcilable inconcistency and repugnancy exist in the terms of the new and old
laws. 6 This latter situation falls under the category of an implied repeal.
Repeal by implication proceeds on the premise that where a statute of later date clearly reveals an intention on
the part of the legislature to abrogate a prior act on the subject, that intention must be given effect. 7 Hence,
before there can be a repeal, there must be a clear showing on the part of the lawmaker that the intent in
enacting the new law was to abrogate the old one. The intention to repeal must be clear and
manifest; 8 otherwise, at least, as a general rule, the later act is to be construed as a continuation of, and not a
substitute for, the first act and will continue so far as the two acts are the same from the time of the first
enactment. 9

There are two categories of repeal by implication. The first is where provisions in the two acts on the same
subject matter are in an irreconcilable conflict, the later act to the extent of the conflict constitutes an implied
repeal of the earlier one. The second is if the later act covers the whole subject of the earlier one and is clearly
intended as a substitute, it will operate to repeal the earlier law. 10
Implied repeal by irreconcilable inconsistency takes place when the two statutes cover the same subject
matter; they are so clearly inconsistent and incompatible with each other that they cannot be reconciled or
harmonized; and both cannot be given effect, that is, that one law cannot be enforced without nullifying the
other. 11
Comparing the two Codes, it is apparent that the new Code does not cover nor attempt to cover the entire
subject matter of the old Code. There are several matters treated in the old Code which are not found in the
new Code, such as the provisions on notaries public, the leave law, the public bonding law, military
reservations, claims for sickness benefits under Section 699, and still others.
Moreover, the COA failed to demonstrate that the provisions of the two Codes on the matter of the subject
claim are in an irreconcilable conflict. In fact, there can be no such conflict because the provision on sickness
benefits of the nature being claimed by petitioner has not been restated in the Administrative Code of 1987.
However, the COA would have Us consider that the fact that Section 699 was not restated in the Administrative
Code of 1987 meant that the same section had been repealed. It further maintained that to allow the particular
provisions not restated in the new Code to continue in force argues against the Code itself. The COA anchored
this argument on the whereas clause of the 1987 Code, which states:
WHEREAS, the effectiveness of the Government will be enhanced by a new Administrative
Code which incorporate in a unified document the major structural, functional and procedural
principles and rules of governance; and
xxx xxx xxx
It argues, in effect, that what is contemplated is only one Code the Administrative Code of 1987. This
contention is untenable.
The fact that a later enactment may relate to the same subject matter as that of an earlier statute is not of itself
sufficient to cause an implied repeal of the prior act, since the new statute may merely be cumulative or a
continuation of the old one. 12 What is necessary is a manifest indication of legislative purpose to repeal. 13
We come now to the second category of repeal the enactment of a statute revising or codifying the former
laws on the whole subject matter. This is only possible if the revised statute or code was intended to cover the
whole subject to be a complete and perfect system in itself. It is the rule that a subsequent statute is deemed to
repeal a prior law if the former revises the whole subject matter of the former statute. 14 When both intent and
scope clearly evidence the idea of a repeal, then all parts and provisions of the prior act that are omitted from
the revised act are deemed repealed. 15 Furthermore, before there can be an implied repeal under this
category, it must be the clear intent of the legislature that the later act be the substitute to the prior act. 16
According to Opinion No. 73, S. 1991 of the Secretary of Justice, what appears clear is the intent to cover only
those aspects of government that pertain to administration, organization and procedure, understandably
because of the many changes that transpired in the government structure since the enactment of the RAC
decades of years ago. The COA challenges the weight that this opinion carries in the determination of this
controversy inasmuch as the body which had been entrusted with the implementation of this particular
provision has already rendered its decision. The COA relied on the rule in administrative law enunciated in the
case of Sison vs.Pangramuyen 17 that in the absence of palpable error or grave abuse of discretion, the Court
would be loathe to substitute its own judgment for that of the administrative agency entrusted with the

enforcement and implementation of the law. This will not hold water. This principle is subject to limitations.
Administrative decisions may be reviewed by the courts upon a showing that the decision is vitiated by fraud,
imposition or mistake. 18 It has been held that Opinions of the Secretary and Undersecretary of Justice are
material in the construction of statutes in pari materia. 19
Lastly, it is a well-settled rule of statutory construction that repeals of statutes by implication are not
favored. 20The presumption is against inconsistency and repugnancy for the legislature is presumed to know
the existing laws on the subject and not to have enacted inconsistent or conflicting statutes. 21
This Court, in a case, explains the principle in detail as follows: "Repeals by implication are not favored, and
will not be decreed unless it is manifest that the legislature so intended. As laws are presumed to be passed
with deliberation with full knowledge of all existing ones on the subject, it is but reasonable to conclude that in
passing a statute it was not intended to interfere with or abrogate any former law relating to some matter,
unless the repugnancy between the two is not only irreconcilable, but also clear and convincing, and flowing
necessarily from the language used, unless the later act fully embraces the subject matter of the earlier, or
unless the reason for the earlier act is beyond peradventure renewed. Hence, every effort must be used to
make all acts stand and if, by any reasonable construction, they can be reconciled, the later act will not operate
as a repeal of the earlier. 22
Regarding respondent's contention that recovery under this subject section shall bar the recovery of benefits
under the Employees' Compensation Program, the same cannot be upheld. The second sentence of Article
173, Chapter II, Title II (dealing on Employees' Compensation and State Insurance Fund), Book IV of the Labor
Code, as amended by P.D. 1921, expressly provides that "the payment of compensation under this Title shall
not bar the recovery of benefits as provided for in Section 699 of the Revised Administrative Code . . . whose
benefits are administered by the system (meaning SSS or GSIS) or by other agencies of the government."
WHEREFORE, premises considered, the Court resolves to GRANT the petition; respondent is hereby ordered
to give due course to petitioner's claim for benefits. No costs.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Davide, Jr., Romero, Nocon, Bellosillo
and Melo, JJ., concur.
Gutierrez, Jr., J., concur in the result.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. L-39990 July 22, 1975

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RAFAEL LICERA, defendant-appellant.
Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista and Solicitor
Pedro A. Ramirez for plaintiff-appellee.
Romeo Mercado (as Counsel de Oficio) for defendant-appellant.

CASTRO, J.:
This is an appeal, on a question of law, by Rafael Licera from the judgment dated August 14, 1968 of the Court
of First Instance of Occidental Mindoro convicting him of the crime of illegal possession of firearm and
sentencing him to imprisonment of five (5) years. We reverse the judgment of conviction, for the reasons
hereunder stated.
On December 3, 1965 the Chief of Police of Abra de Ilog, Occidental Mindoro, filed a complaint, subscribed
and sworn to by him, with the municipal court of the said municipality, charging Rafael Licera with illegal
possession of a Winchester rifle, Model 55, Caliber .30. On August 13, 1966 the municipal court rendered
judgment finding Licera guilty of the crime charged, sentencing him to suffer an indeterminate penalty ranging
five years and one day to six years and eight months of imprisonment. Licera appealed to the Court of First
Instance of Occidental Mindoro.
In the Court of First Instance, the parties agreed to the joint trial of the case for illegal possession of firearm
and another case, likewise filed against Licera with the municipal court but already forwarded to the said Court
of First Instance, for assault upon an agent of a person in authority, the two offenses having arisen from the
same occasion: apprehension of Licera by the Chief of Police and a patrolman of Abra de Ilog on December 2,
1965 for possession of the Winchester rifle without the requisite license or permit therefor.
On August 14, 1968 the court a quo rendered judgment acquitting Licera of the charge of assault upon an
agent of a person in authority, but convicting him of illegal possession of firearm, sentencing him to suffer five
years of imprisonment, and ordering the forfeiture of the Winchester rifle in favor of the Government.
Licera's appeal to the Court of Appeals was certified on October 16, 1974 to this Court as involving only one
question of law.
Licera invokes as his legal justification for his possession of the Winschester rifle his appointment as secret
agent on December 11, 1961 by Governor Feliciano Leviste of Batangas. He claims that as secret agent, he
was a "peace officer" and, thus, pursuant to People vs. Macarandang, 1 was exempt from the requirements
relating to the issuance of license to possess firearms. He alleges that the court a quo erred in relying on the
later case of People vs. Mapa 2 which held that section 879 of the Revised Administrative Code provides no
exemption for persons appointed as secret agents by provincial governors from the requirements relating to
firearm licenses.
The principal question thus posed calls for a determination of the rule that should be applied to the case at bar
that enunciated in Macarandang or that in Mapa.

The appointment given to Licera by Governor Leviste which bears the date "December 11, 1961" includes a
grant of authority to Licera to possess the Winchester rifle in these terms: "In accordance with the decision of
the Supreme Court in G.R. No. L-12088 dated December 23, 1959, you will have the right to bear a firearm ...
for use in connection with the performance of your duties." Under the rule then prevailing, enunciated
in Macarandang, 3the appointment of a civilian as a "secret agent to assist in the maintenance of peace and
order campaigns and detection of crimes sufficiently put[s] him within the category of a "peace officer"
equivalent even to a member of the municipal police" whom section 879 of the Revised Administrative Code
exempts from the requirements relating to firearm licenses.
Article 8 of the Civil Code of the Philippines decrees that judicial decisions applying or interpreting the laws or
the Constitution form part of this jurisdiction's legal system. These decisions, although in themselves not laws,
constitute evidence of what the laws mean. The application or interpretation placed by the Court upon a law is
part of the law as of the date of the enactment of the said law since the Court's application or interpretation
merely establishes the contemporaneous legislative intent that the construed law purports to carry into effect. 4
At the time of Licera's designation as secret agent in 1961 and at the time of his apprehension for possession
of the Winchester rifle without the requisite license or permit therefor in 1965, the Macarandang rule the
Courts interpretation of section 879 of the Revised Administrative Code - formed part of our jurisprudence and,
hence, of this jurisdiction's legal system. Mapa revoked the Macarandang precedent only in 1967. Certainly,
where a new doctrine abrogates an old rule, the new doctrine should operate respectively only and should not
adversely affect those favored by the old rule, especially those who relied thereon and acted on the faith
thereof. This holds more especially true in the application or interpretation of statutes in the field of penal law,
for, in this area, more than in any other, it is imperative that the punishability of an act be reasonably foreseen
for the guidance of society. 5
Pursuant to the Macarandang rule obtaining not only at the time of Licera's appointment as secret agent, which
appointment included a grant of authority to possess the Winchester rifle, but as well at the time as of his
apprehension, Licera incurred no criminal liability for possession of the said rifle, notwithstanding his noncompliance with the legal requirements relating to firearm licenses.1wph1.t
ACCORDINGLY, the judgment a quo is reversed, and Rafael Licera is hereby acquitted. Costs de oficio.
Makasiar, Esguerra, Muoz Palma and Martin, JJ., concur.
Teehankee, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. L-30061 February 27, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellees,
vs.
JOSE JABINAL Y CARMEN, defendant-appellant.
Office of the Solicitor General Felix V. Makasiar and Solicitor Antonio M. Martinez for plaintiff-appellee.
Pedro Panganiban y Tolentino for defendant-appellant.

ANTONIO, J.:p
Appeal from the judgment of the Municipal Court of Batangas (provincial capital), Batangas, in Criminal Case
No. 889, finding the accused guilty of the crime of Illegal Possession of Firearm and Ammunition and
sentencing him to suffer an indeterminate penalty ranging from one (1) year and one (1) day to two (2) years
imprisonment, with the accessories provided by law, which raises in issue the validity of his conviction based
on a retroactive application of Our ruling in People v. Mapa. 1
The complaint filed against the accused reads:
That on or about 9:00 o'clock, p.m., the 5th day of September, 1964, in the poblacion,
Municipality of Batangas, Province of Batangas, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, a person not authorized by law, did then and there
wilfully, unlawfully and feloniously keep in his possession, custody and direct control a revolver
Cal. .22, RG8 German Made with one (1) live ammunition and four (4) empty shells without first
securing the necessary permit or license to possess the same.
At the arraignment on September 11, 1964, the accused entered a plea of not guilty, after which trial was
accordingly held.
The accused admitted that on September 5, 1964, he was in possession of the revolver and the ammunition
described in the complaint, without the requisite license or permit. He, however, claimed to be entitled to
exoneration because, although he had no license or permit, he had an appointment as Secret Agent from the
Provincial Governor of Batangas and an appointment as Confidential Agent from the PC Provincial
Commander, and the said appointments expressly carried with them the authority to possess and carry the
firearm in question.
Indeed, the accused had appointments from the above-mentioned officials as claimed by him. His appointment
from Governor Feliciano Leviste, dated December 10, 1962, reads:
Reposing special trust and confidence in your civic spirit, and trusting that you will be an
effective agent in the detection of crimes and in the preservation of peace and order in the

province of Batangas, especially with respect to the suppression of trafficking in explosives,

jueteng, illegal cockfighting, cattle rustling, robbery and the detection of unlicensed firearms, you
are hereby appointed a SECRET AGENT of the undersigned, the appointment to take effect
immediately, or as soon as you have qualified for the position. As such Secret Agent, your duties
shall be those generally of a peace officer and particularly to help in the preservation of peace
and order in this province and to make reports thereon to me once or twice a month. It should
be clearly understood that any abuse of authority on your part shall be considered sufficient
ground for the automatic cancellation of your appointment and immediate separation from the
service. In accordance with the decision of the Supreme Court in G.R. No. L-12088 dated
December 23, 1959, you will have the right to bear a firearm, particularly described below, for
use in connection with the performance of your duties.
By virtue hereof, you may qualify and enter upon the performance of your duties by taking your
oath of office and filing the original thereof with us.
Very
truly
yours,
(Sgd.)
FELICI
ANO
LEVIS
TE
Provin
cial
Gover
nor
FIREARM AUTHORIZED TO CARRY:
Kind: ROHM-Revolver
Make: German
SN: 64
Cal: .22
On March 15, 1964, the accused was also appointed by the PC Provincial Commander of Batangas as
Confidential Agent with duties to furnish information regarding smuggling activities, wanted persons, loose
firearms, subversives and other similar subjects that might affect the peace and order condition in Batangas
province, and in connection with these duties he was temporarily authorized to possess a ROHM revolver, Cal.
.22 RG-8 SN-64, for his personal protection while in the performance of his duties.
The accused contended before the court a quo that in view of his above-mentioned appointments as Secret
Agent and Confidential Agent, with authority to possess the firearm subject matter of the prosecution, he was
entitled to acquittal on the basis of the Supreme Court's decision in People vs. Macarandang 2 and People vs.
Lucero. 3 The trial court, while conceding on the basis of the evidence of record the accused had really been
appointed Secret Agent and Confidential Agent by the Provincial Governor and the PC Provincial Commander
of Batangas, respectively, with authority to possess and carry the firearm described in the complaint,
nevertheless held the accused in its decision dated December 27, 1968, criminally liable for illegal possession

of a firearm and ammunition on the ground that the rulings of the Supreme Court in the cases
of Macarandang and Lucero were reversed and abandoned in People vs. Mapa, supra. The court considered
as mitigating circumstances the appointments of the accused as Secret Agent and Confidential Agent.
Let us advert to Our decisions in People v. Macarandang, supra, People v. Lucero, supra, and People v. Mapa,
supra. In Macarandang, We reversed the trial court's judgment of conviction against the accused because it
was shown that at the time he was found to possess a certain firearm and ammunition without license or
permit, he had an appointment from the Provincial Governor as Secret Agent to assist in the maintenance of
peace and order and in the detection of crimes, with authority to hold and carry the said firearm and
ammunition. We therefore held that while it is true that the Governor has no authority to issue any firearm
license or permit, nevertheless, section 879 of the Revised Administrative Code provides that "peace officers"
are exempted from the requirements relating to the issuance of license to possess firearms; and
Macarandang's appointment as Secret Agent to assist in the maintenance of peace and order and detection of
crimes, sufficiently placed him in the category of a "peace officer" equivalent even to a member of the
municipal police who under section 879 of the Revised Administrative Code are exempted from the
requirements relating to the issuance of license to possess firearms. In Lucero, We held that under the
circumstances of the case, the granting of the temporary use of the firearm to the accused was a necessary
means to carry out the lawful purpose of the batallion commander to effect the capture of a Huk leader.
In Mapa, expressly abandoning the doctrine in Macarandang, and by implication, that in Lucero, We sustained
the judgment of conviction on the following ground:
The law is explicit that except as thereafter specifically allowed, "it shall be unlawful for any
person to ... possess any firearm, detached parts of firearms or ammunition therefor, or any
instrument or implement used or intended to be used in the manufacture of firearms, parts of
firearms, or ammunition." (Sec. 878, as amended by Republic Act No. 4, Revised Administrative
Code.) The next section provides that "firearms and ammunition regularly and lawfully issued to
officers, soldiers, sailors, or marines [of the Armed Forces of the Philippines], the Philippine
Constabulary, guards in the employment of the Bureau of Prisons, municipal police, provincial
governors, lieutenant governors, provincial treasurers, municipal treasurers, municipal mayors,
and guards of provincial prisoners and jails," are not covered "when such firearms are in
possession of such officials and public servants for use in the performance of their official
duties." (Sec. 879, Revised Administrative Code.)
The law cannot be any clearer. No provision is made for a secret agent. As such he is not
exempt. ... .
It will be noted that when appellant was appointed Secret Agent by the Provincial Government in 1962, and
Confidential Agent by the Provincial Commander in 1964, the prevailing doctrine on the matter was that laid
down by Us in People v. Macarandang (1959) and People v. Lucero (1958). Our decision in People v.
Mapa reversing the aforesaid doctrine came only in 1967. The sole question in this appeal is: Should appellant
be acquitted on the basis of Our rulings in Macarandang and Lucero, or should his conviction stand in view of
the complete reversal of the Macarandang and Lucero doctrine in Mapa? The Solicitor General is of the first
view, and he accordingly recommends reversal of the appealed judgment.
Decisions of this Court, although in themselves not laws, are nevertheless evidence of what the laws mean,
and this is the reason why under Article 8 of the New Civil Code "Judicial decisions applying or interpreting the
laws or the Constitution shall form a part of the legal system ... ." The interpretation upon a law by this Court
constitutes, in a way, a part of the law as of the date that law originally passed, since this Court's construction
merely establishes the contemporaneous legislative intent that law thus construed intends to effectuate. The
settled rule supported by numerous authorities is a restatement of legal maxim "legis interpretatio legis vim
obtinet" the interpretation placed upon the written law by a competent court has the force of law. The
doctrine laid down inLucero and Macarandang was part of the jurisprudence, hence of the law, of the land, at

the time appellant was found in possession of the firearm in question and when he arraigned by the trial court.
It is true that the doctrine was overruled in the Mapa case in 1967, but when a doctrine of this Court is
overruled and a different view is adopted, the new doctrine should be applied prospectively, and should not
apply to parties who had relied on the old doctrine and acted on the faith thereof. This is especially true in the
construction and application of criminal laws, where it is necessary that the punishability of an act be
reasonably foreseen for the guidance of society.
It follows, therefore, that considering that appellant conferred his appointments as Secret Agent and
Confidential Agent and authorized to possess a firearm pursuant to the prevailing doctrine enunciated
in Macarandang andLucero, under which no criminal liability would attach to his possession of said firearm in
spite of the absence of a license and permit therefor, appellant must be absolved. Certainly, appellant may not
be punished for an act which at the time it was done was held not to be punishable.
WHEREFORE, the judgment appealed from is hereby reversed, and appellant is acquitted, with costs de
oficio.
Zaldivar (Chairman), Barredo, Fernandez and Aquino, JJ., concur.
Fernando, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-10010

August 1, 1916

CHU JAN, plaintiff-appellee,

vs.
LUCIO BERNAS, defendant-appellant.
Sulpicio V. Cea for appellant.
ARAULLO, J.:
On the afternoon of June 26, 1913, a match was held in the cockpit of the municipality of Tabaco, Albay,
between two cocks belonging to the plaintiff and to the defendant respectively. Each of said persons had put
up a wager of P160; and as the referee of the cockpit had declared the defendant's cock the winner in the
bout, the plaintiff brought suit against the defendant in the justice of the peace court of the said pueblo, asking
that his own rooster be declared the winner. The justice of the peace court decided that the bout was a draw.
From this judgment the defendant appealed to the Court of First Instance of the province. For the purposes of
the appeal, the plaintiff filed his complaint and prayed this court to render judgment ordering the defendant to
abide by and comply with the rules and regulations governing cockfights, to pay the stipulated wager of P160;
to return the other like amount (both sums of wager being held for safe-keeping by the cockpit owner, Tomas
Almonte) and to assess the costs of both instances against the defendant.
The defendant denied each and all of the allegations of the complaint and moved to dismiss with the costs
against the plaintiff. On September 11, 1913, the said Court of First Instance rendered judgment dismissing the
appeal without special finding as to costs. The defendant excepted to this judgment as well as to an order
dictated by the same court on November 8th of the same year, on the plaintiff's motion, ordering the provincial
treasurer of Albay and, if necessary, the municipal treasurer of Tabaco of the same province, to release the
deposit of P160 and return it to its owner, the plaintiff Chinaman, Chu Jan. These proceedings have come
before us on appeal by means of the proper bill of exceptions.
The grounds for the dismissal pronounced by the lower court in the judgment appealed from ere that the court
has always dismissed cases of this nature, that he is not familiar with the rules governing cockfights and the
duties of referees thereof; that he does not know where to find the law on the subject and, finally, that he
knows of no law whatever that governs the rights to the plaintiff and the defendant in questions concerning
cockfights.

The ignorance of the court or his lack of knowledge regarding the law applicable to a case submitted to him for
decision, the fact that the court does not know the rules applicable to a certain matter that is the subject of an
appeal which must be decided by him and his not knowing where to find the law relative to the case, are not
reasons that can serve to excuse the court for terminating the proceedings by dismissing them without
deciding the issues. Such an excuse is the less acceptable because, foreseeing that a case might arise to
which no law would be exactly applicable, the Civil Code, in the second paragraph of article 6, provides that
the customs of the place shall be observed, and, in the absence thereof, the general principles of law.
Therefore the judgment and the order appealed from, hereinbefore mentioned, are reversed and to record of
the proceedings shall remanded to the court from whence they came for due trial and judgment as provided by
law. No special finding is made with regard to costs. So ordered.
Arellano, C. J., Torres, Johnson, and Trent, JJ., concur.
Moreland, J., took no part.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. Nos. 119987-88 October 12, 1995

THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. LORENZO B. VENERACION, Presiding Judge of the Regional Trial Court, National Capital
Judicial Region, Branch 47, Manila, HENRY LAGARTO y PETILLA and ERNESTO
CORDERO, respondents.

KAPUNAN, J.:
The sole issue in the case at bench involves a question of law. After finding that an accused individual in a
criminal case has, on the occasion of Rape, committed Homicide, is the judge allowed any discretion in
imposingeither the penalty of Reclusion Perpetua or Death?
The facts antecedent to the case before this Court, as narrated by petitioner, 1 involve the perpetration of acts
so bizarre and devoid of humanity as to horrify and numb the senses of all civilized men:
On August 2, 1994, the cadaver of a young girl, later identified as Angel Alquiza wrapped in a
sack and yellow table cloth tied with a nylon cord with both feet and left hand protruding from it
was seen floating along Del Pan St. near the corner of Lavesares St., Binondo, Manila.
When untied and removed from its cover, the lifeless body of the victim was seen clad only in a
light colored duster without her panties, with gaping wounds on the left side of the face, the left
chin, left ear, lacerations on her genitalia, and with her head bashed in.
On the basis of sworn statements of witnesses, booking sheets, arrest reports and the necropsy report of the
victim, Abundio Lagunday, a.k.a. Jr. Jeofrey of no fixed address, and Henry Lagarto y Petilla, of 288 Area H.

Parola Compound, Tondo, Manila were later charged with the crime of Rape with Homicide in an Information
dated August 8, 1994 filed with the Regional Trial Court of Manila, National Capital Judicial Region. Said
Information, docketed as Criminal Case No. 94-138071, reads:
That on or about August 2, 1994, in the City of Manila, Philippines, the said accused, conspiring
and confederating together with one alias "LANDO" and other persons whose true names,
identifies and present whereabouts are still unknown and helping one another, with treachery,
taking advantage of their superior strength and nocturnity, and ignominy, and with the use of
force and violence, that is, by taking ANGEL ALQUIZA y LAGMAN into a warehouse, covering
her mouth, slashing her vagina, hitting her head with a thick piece of wood and stabbing her
neck did then and there wilfully, unlawfully and feloniously have carnal knowledge of the person
of said ANGEL ALQUIZA y LAGMAN, a minor, seven (7) years of age, against the latter's will
and consent and on said occasion the said ABUNDIO LAGUNDAY, a.k.a. "LANDO" and others,
caused her fatal injuries which were the direct cause of her death immediately thereafter.
CONTRARY TO LAW.
Subsequently thereafter, Ernesto Cordero y Maristela, a.k.a. "Booster," of 1198 Sunflower St.,
Tondo, Manila, Rolando Manlangit y Mamerta, a.k.a. "Lando," of 1274 Kagitingan St., Tondo,
Manila, Richard Baltazar y Alino, a.k.a. "Curimao," also of 1274 Kagitingan St., Tondo, Manila,
and Catalino Yaon y Aberin, a.k.a. "Joel," of 1282 Lualhati St., Tondo, Manila were accused of
the same crime of Rape with Homicide in an Information dated August 11, 1994, docketed as
Criminal Case No. 94-138138, allegedly committed as follows:
That on or about the 2nd day of August, 1994, in the City of Manila, Philippines,
the said accused conspiring and confederating with ABUNDIO
LAGUNDAY Alias "JR," JEOFREY and HENRY LAGARTO y PETILLA who have
already been charged in the Regional Trial Court of Manila of the same offense
under Criminal Case No. 94-138071, and helping one another, with treachery,
taking advantage of their superior strength and nocturnity and ignominy, and with
the use of force and violence, that is, by taking ANGEL ALQUIZA y LAGMAN into
a pedicab, and once helpless, forcibly bringing her to a nearby warehouse,
covering her mouth, slashing her vagina, hitting her head with a thick piece of
wood and stabbing her neck, did then and there wilfully, unlawfully and
feloniously have carnal knowledge of the person of said ANGEL ALQUIZA y
LAGMAN, a minor, seven (7) years of age, against the latter's will and consent
and on said occasion the said accused together with their confederates
ABUNDIO LAGARTO y PETILLA caused her fatal injuries which were the direct
cause of her death immediately thereafter.
CONTRARY TO LAW.
The two criminal cases were consolidated to Branch 47 of the Regional Trial Court of Manila,
presided over by respondent Judge.
Duly arraigned, all the accused, except Abundio Lagunday who was already dead, (allegedly
shot by police escorts after attempting to fire a gun he was able to grab from SPO1 D. Vidad on
August 12, 1994), pleaded "Not Guilty." Abundio Lagunday was dropped from the Information.
After trial and presentation of the evidence of the prosecution and the defense, the trial court rendered a
decision2 on January 31, 1995 finding the defendants Henry Lagarto y Petilla and Ernesto Cordero y Maristela
guilty beyond reasonable doubt of the crime of Rape with Homicide and sentenced both accused with the

"penalty of reclusion perpetuawith all the accessories provided for by law." 3 Disagreeing with the sentence
imposed, the City Prosecutor of Manila on February 8, 1995, filed a Motion for Reconsideration, praying that
the Decision be "modified in that the penalty of death be imposed" against respondents Lagarto and Cordero,
in place of the original penalty (reclusion perpetua). Refusing to act on the merits of the said Motion for
Reconsideration, respondent Judge, on February 10, 1995, issued an Order denying the same for lack of
jurisdiction. The pertinent portion reads:
The Court believes that in the above-entitled cases, the accused Lagarto and Cordero have
complied with the legal requirements for the perfection of an appeal. Consequently, for lack of
jurisdiction, this Court cannot take cognizance of the Motion for Reconsideration of the Public
Prosecutor of Manila.
WHEREFORE, the order earlier issued by this Court regarding the Notices of Appeal filed by
both herein accused is hereby reiterated.
The Clerk of this Court is hereby directed to transmit the complete records of these cases,
together with the notices of appeal, to the Honorable Supreme Court, in accordance with Sec. 8,
Rule 122 of the Revised Rules of Criminal Procedure.
SO ORDERED.
Hence, the instant petition.
The trial court's finding of guilt is not at issue in the case at bench. The basis of the trial court's determination of
guilt and its conclusions will only be subject to our scrutiny at an appropriate time on appeal. We have thus
clinically limited our narration of events to those cold facts antecedent to the instant case relevant to the
determination of the legal question at hand, i.e., whether or not the respondent judge acted with grave abuse of
discretion and in excess of jurisdiction when he failed and/or refused to impose the mandatory penalty of death
under Republic Act No. 7659, after finding the accused guilty of the crime of Rape with Homicide.
We find for petitioner.
Obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise of religious
or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law
to exercise the duties of their office, then law becomes meaningless. A government of laws, not of men
excludes the exercise of broad discretionary powers by those acting under its authority. Under this system,
judges are guided by the Rule of Law, and ought "to protect and enforce it without fear or favor," 4 resist
encroachments by governments, political parties, 5 or even the interference of their own personal beliefs.
In the case at bench, respondent judge, after weighing the evidence of the prosecution and the defendant at
trial found the accused guilty beyond reasonable doubt of the crime of Rape with Homicide. Since the law in
force at the time of the commission of the crime for which respondent judge found the accused guilty was
Republic Act No. 7659, he was bound by its provisions.
Section 11 of R.A. No. 7659 provides:
Sec. 11. Article 335 of the same Code is hereby amended to read as follows:
Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge
of a woman under any of the following circumstances:
1. By using force or intimidation.

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, the victim has become insane, the penalty shall
be death.
When the rape is attempted or frustrated and a homicide is committed by reason or on the
occasion thereof, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be
death. . . . 6
Clearly, under the law, the penalty imposable for the crime of Rape with Homicide is not Reclusion
Perpetua but Death. While Republic Act 7659 punishes cases of ordinary rape with the penalty of Reclusion
Perpetua, it allows judges the discretion depending on the existence of circumstances modifying the offense
committed to impose the penalty of either Reclusion Perpetua only in the three instances mentioned therein.
Rape with homicide is not one of these three instances. The law plainly and unequivocably provides that
"[w]hen by reason or on the occasion of rape, a homicide is committed, the penalty shall be death." The
provision leaves no room for the exercise of discretion on the part of the trial judge to impose a penalty under
the circumstances described, other than a sentence of death.
We are aware of the trial judge's misgivings in imposing the death sentence because of his religious
convictions. While this Court sympathizes with his predicament, it is its bounden duty to emphasize that a court
of law is no place for a protracted debate on the morality or propriety of the sentence, where the law itself
provides for the sentence of death as a penalty in specific and well-defined instances. The discomfort faced by
those forced by law to impose the death penalty is an ancient one, but it is a matter upon which judges have no
choice. Courts are not concerned with the wisdom, efficacy or morality of laws. In People vs. Limaco 7 we held
that:
[W]hen . . . private opinions not only form part of their decision but constitute a decisive factor in
arriving at a conclusion and determination of a case or the penalty imposed, resulting in an
illegality and reversible error, then we are constrained to state our opinion, not only to correct
the error but for the guidance of the courts. We have no quarrel with the trial judge or with
anyone else, layman or jurist as to the wisdom or folly of the death penalty. Today there are
quite a number of people who honestly believe that the supreme penalty is either morally wrong
or unwise or ineffective. However,as long as that penalty remains in the statute books, and as
long as our criminal law provides for its imposition in certain cases, it is the duty of judicial
officers to respect and apply the law regardless of their private opinions. It is a well settled rule
that the courts are not concerned with the wisdom, efficacy or morality of laws. That question
falls exclusively within the province of the Legislature which enacts them and the Chief
Executive who approves or vetoes them. The only function of the judiciary is to interpret the
laws and, if not in disharmony with the Constitution, to apply them. And for the guidance of the
members of the judiciary we feel it incumbent upon us to state that while they as citizens or as
judges may regard a certain law as harsh, unwise or morally wrong, and may recommend to the
authority or department concerned, its amendment, modification, or repeal, still, as long as said
law is in force, they must apply it and give it effect as decreed by the law-making body. 8

Finally, the Rules of Court mandates that after an adjudication of guilt, the judge should impose "the proper
penalty and civil liability provided for by the law on the accused." 9 This is not a case of a magistrate ignorant of
the law. This is a case in which a judge, fully aware of the appropriate provisions of the law, refuses to impose
a penalty to which he disagrees. In so doing, respondent judge acted without or in excess of his jurisdiction or
with grave abuse of discretion amounting to a lack of jurisdiction in imposing the penalty of Reclusion
Perpetua where the law clearly imposes the penalty of Death.
WHEREFORE, PREMISES CONSIDERED, the instant petition is GRANTED. The case is hereby REMANDED
to the Regional Trial Court for the imposition of the penalty of death upon private respondents in consonance
with respondent judge's finding that the private respondents in the instant case had committed the crime of
Rape with Homicide under Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act
No. 7659, subject to automatic review by this Court of the decision imposing the death penalty.
SO ORDERED.
Feliciano, Padilla, Romero, Bellosillo, Melo, Puno, Mendoza, Francisco and Hermosisima, Jr., JJ., concur.

Separate Opinions

NARVASA, C.J., concurring:

I concur with the conclusions and dispositions set forth in the opinion of Mr. Justice Kapunan. I draw up this
separate opinion merely to address a question which may be raised in relation to the appeal taken by the
accused from the judgment of conviction rendered by respondent Judge. It will be recalled that respondent
Judge declined to act on the merits of motion for reconsideration filed by the prosecution praying that his
decision sentencing both accused to suffer reclusion perpetua be "modified in that the penalty of death be
imposed" for the reason that since the accused had already "complied with the legal requirements for the
perfection of an appeal," the Trial Court had lost jurisdiction over the cases. It was precisely that refusal that
prompted the institution in this Court of the special civil action of certiorari at bar.
It is indeed axiomatic that once an appeal is perfected from a judgment, jurisdiction is lost by the court
rendering the judgment; and jurisdiction over the case passes to the appellate tribunal. This proposition
considered, and following respondent Judge's reasoning, this Court's directive for the remand of the case "to
the Regional Trial Court for the imposition of the penalty of death upon private respondents," might appear to
be open to question, since it would require the Trial Court to act in cases over which it had lost jurisdiction.
Such a conclusion is not warranted.
The judgment in question is void, and has been annulled and set aside by this Court, because rendered
"without or in excess of . . . jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction," in so
far as it imposes, in light of the facts found to have been proven beyond reasonable doubt, a penalty other than
that peremptorily prescribed by law. The judgment being void, the appeal attempted to be taken therefrom is
inefficacious. The Trial Court may not be deemed to have thereby lost jurisdiction of the cases. It cannot thus

be said that it is being required by this Court to act in cases over which it has already lost jurisdiction. There
exists no legal obstacle to the remand of the cases to it and its modification of the judgment so that it may
comply with the mandatory prescription of the law.
REGALADO, J., concurring:
I concur without reservation in the ponencia in this case and its directive that the court a quo impose the
correct penalty of death as provided by law and consequent to its findings of guilt on the part of private
respondents. Indeed, this separate opinion which explicates my conformity with the procedure adopted and the
mandate thereof would not have been necessary were it not for the contrary observations that the petition
herein should either have been dismissed or consolidated with the criminal case elevated on appeal by private
respondents.
Such digression from the judgment unconditionally accepted by the other members of the Court does not
impress me as being concordant with the Rules of Court and decisional law. What is before us in the case at
bar is an original civil action invoking the extraordinary writ of certiorari for the imposition of the correct
penalty specified by law, which legal duty respondent judge refused to comply with in grave abuse of his
judicial discretion. 1 On the other hand, the criminal case with which it is sought to be consolidated is an
appellate recourse wherein the relief sought is primarily the reversal of the finding of guilt and the absolution of
private respondents.
Evidently, the determinative issues involved and the limited relief sought in the present special civil action are
entirely different from the issues for resolution and the modificatory judgment desired in the appealed criminal
case. The basic rule in consolidation of cases in civil procedure 2 requires, among others, the same subject
matter and the existence of a common question of law or fact. This is essentially the same as the rule on
consolidation in criminal procedure 3 which contemplates charges for offenses founded on the same facts, or
forming part of a series of offenses of similar character.
Also, these reglementary requisites for consolidation require two or more ordinary civil or criminal actions, and
not a special civil action in combination with the former. The impropriety of the latter situation is specially
underscored where the resolution of the controversy in the special civil action is a pre-judicial matter in the
appealed criminal case. These considerations apply to both the trial courts in the exercise of original
jurisdiction and to the appellate courts in the implementation of revisory power.
The purpose of the present original action for certiorari is to have the erroneous judgment of respondent judge
erroneous because he imposed the wrong penalty corrected on that score in the first instance. After such
correction shall have been effected, then the appeal from his judgment shall proceed for the desired review by
this Court to determine the guilt or innocence of appellants. The corrective action must proceed first and the
resultant amended judgment containing the proper penalty shall be the basis for the review as to whether
appellants are truly guilty and have to be meted that ultimate penalty. To have the certiorari action proceed
simultaneously and in unification with the appellate proceeding strikes me as an aberrant procedure. While it
does not exactly square with the figurative posture of putting the cart before the horse, it does result in the
same absurdity of both the horse and the cart moving abreast at the same time along the same judicial path.
It would even be worse if, as suggested, this certiorari action should be dismissed and the appellate review be
conducted with the judgment containing an unauthorized penalty as the basis therefor, with this Court closing
its eyes to such a flagrant mistake. This time the cart precedes the horse. True, an appeal throws the
judgment a quo open for review and the Court may raise the penalty to the appropriate punitive level. But, as
the People pertinently observes, what is there to prevent appellants from withdrawing their appeal upon
sensing from the arguments that, instead of the acquittal or reduced penalty aspired for, the ultimate
denouement would be the death sentence?

Jurisprudence tells us that before the case is submitted for decision, an appellant may withdraw his appeal in
the appellate court. 4 Generally, the withdrawal of an appeal before the filing of the appellee's brief in this Court
is permitted. 5Assuming that the Court denies the withdrawal of the appeal in order that the mistake in the
penalty imposed may be corrected in the judgment of the case on the merits, 6 why should the appellate course
of the proceedings still have to be subject to such contingencies with the inevitable waste of time and effort
in the formulation of alternative theories in two sets of pleadings by both parties when with the decisive
sweep of the adjudgment here the doubts are dissipated and the real areas of contention are laid bare?
Nor is that all. Appellants have come to this Court through the medium of an appeal by writ of error from a
judgment of the trial court imposing the wrong penalty of reclusion perpetua. If the mistake in the penalty is
now rectified with the death sentence being substituted therefor, as undeniably it should be, then the case will
consequently be before this Court on automatic review. That provision calling for automatic review when capital
punishment is inflicted 7 serves equally the interests of both the defense and the prosecution through protective
features established by case law.
Thus, even if the accused had unnecessarily appealed from the judgment imposing the penalty of death and
he thereafter withdraws his appeal, the automatic review of the case shall nonetheless proceed, albeit without
the benefit of briefs or arguments from the accused. 8 The automatic review of the case shall proceed even if
the death convict shall escape, 9 as an exception to the provisions of Section 8, Rule 124, and such automatic
review cannot be waived. 10 The aforementioned beneficial effects are not provided for and may not be availed
of by the accused in an ordinary appeal to this Court.
The automatic review of the death sentence ensures the right of the condemned person to procedural due
process on appeal, and safeguards the interests of the State by exacting the corresponding penal sanction
decreed by law. The disposition adopted by the Court in this case subserves the ends of these fundamental
policies, hence my unqualified assent thereto.
VITUG, J., dissenting:
The ponencia itself indicates that the case against the convicted accused is already on appeal before this
Court. Thus, the instant petition, in my view, has become academic since an appeal brings the case wide open
for review and consideration. A ruling on the petition would be precipitate and might be so perceived as
peremptory on the imposition of the death penalty.
With all due respect, it is my personal view that if the Court is not disposed to dismiss the petition, it should at
the very least be consolidated with the appealed case.
Accordingly, I am constrained, at this time, to vote for the dismissal of the petition.
Davide, Jr., J. concurs.

Separate Opinions
NARVASA, C.J., concurring:
I concur with the conclusions and dispositions set forth in the opinion of Mr. Justice Kapunan. I draw up this
separate opinion merely to address a question which may be raised in relation to the appeal taken by the
accused from the judgment of conviction rendered by respondent Judge. It will be recalled that respondent
Judge declined to act on the merits of motion for reconsideration filed by the prosecution praying that his
decision sentencing both accused to suffer reclusion perpetua be "modified in that the penalty of death be

imposed" for the reason that since the accused had already "complied with the legal requirements for the
perfection of an appeal," the Trial Court had lost jurisdiction over the cases. It was precisely that refusal that
prompted the institution in this Court of the special civil action of certiorari at bar.
It is indeed axiomatic that once an appeal is perfected from a judgment, jurisdiction is lost by the court
rendering the judgment; and jurisdiction over the case passes to the appellate tribunal. This proposition
considered, and following respondent Judge's reasoning, this Court's directive for the remand of the case "to
the Regional Trial Court for the imposition of the penalty of death upon private respondents," might appear to
be open to question, since it would require the Trial Court to act in cases over which it had lost jurisdiction.
Such a conclusion is not warranted.
The judgment in question is void, and has been annulled and set aside by this Court, because rendered
"without or in excess of . . . jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction," in so
far as it imposes, in light of the facts found to have been proven beyond reasonable doubt, a penalty other than
that peremptorily prescribed by law. The judgment being void, the appeal attempted to be taken therefrom is
inefficacious. The Trial Court may not be deemed to have thereby lost jurisdiction of the cases. It cannot thus
be said that it is being required by this Court to act in cases over which it has already lost jurisdiction. There
exists no legal obstacle to the remand of the cases to it and its modification of the judgment so that it may
comply with the mandatory prescription of the law.
REGALADO, J., concurring:
I concur without reservation in the ponencia in this case and its directive that the court a quo impose the
correct penalty of death as provided by law and consequent to its findings of guilt on the part of private
respondents. Indeed, this separate opinion which explicates my conformity with the procedure adopted and the
mandate thereof would not have been necessary were it not for the contrary observations that the petition
herein should either have been dismissed or consolidated with the criminal case elevated on appeal by private
respondents.
Such digression from the judgment unconditionally accepted by the other members of the Court does not
impress me as being concordant with the Rules of Court and decisional law. What is before us in the case at
bar is an original civil action invoking the extraordinary writ of certiorari for the imposition of the correct
penalty specified by law, which legal duty respondent judge refused to comply with in grave abuse of his
judicial discretion. 1 On the other hand, the criminal case with which it is sought to be consolidated is an
appellate recourse wherein the relief sought is primarily the reversal of the finding of guilt and the absolution of
private respondents.
Evidently, the determinative issues involved and the limited relief sought in the present special civil action are
entirely different from the issues for resolution and the modificatory judgment desired in the appealed criminal
case. The basic rule in consolidation of cases in civil procedure 2 requires, among others, the same subject
matter and the existence of a common question of law or fact. This is essentially the same as the rule on
consolidation in criminal procedure 3 which contemplates charges for offenses founded on the same facts, or
forming part of a series of offenses of similar character.
Also, these reglementary requisites for consolidation require two or more ordinary civil or criminal actions, and
not a special civil action in combination with the former. The impropriety of the latter situation is specially
underscored where the resolution of the controversy in the special civil action is a pre-judicial matter in the
appealed criminal case. These considerations apply to both the trial courts in the exercise of original
jurisdiction and to the appellate courts in the implementation of revisory power.
The purpose of the present original action for certiorari is to have the erroneous judgment of respondent judge
erroneous because he imposed the wrong penalty corrected on that score in the first instance. After such

correction shall have been effected, then the appeal from his judgment shall proceed for the desired review by
this Court to determine the guilt or innocence of appellants. The corrective action must proceed first and the
resultant amended judgment containing the proper penalty shall be the basis for the review as to whether
appellants are truly guilty and have to be meted that ultimate penalty. To have the certiorari action proceed
simultaneously and in unification with the appellate proceeding strikes me as an aberrant procedure. While it
does not exactly square with the figurative posture of putting the cart before the horse, it does result in the
same absurdity of both the horse and the cart moving abreast at the same time along the same judicial path.
It would even be worse if, as suggested, this certiorari action should be dismissed and the appellate review be
conducted with the judgment containing an unauthorized penalty as the basis therefor, with this Court closing
its eyes to such a flagrant mistake. This time the cart precedes the horse. True, an appeal throws the
judgment a quo open for review and the Court may raise the penalty to the appropriate punitive level. But, as
the People pertinently observes, what is there to prevent appellants from withdrawing their appeal upon
sensing from the arguments that, instead of the acquittal or reduced penalty aspired for, the ultimate
denouement would be the death sentence?
Jurisprudence tells us that before the case is submitted for decision, an appellant may withdraw his appeal in
the appellate court. 4 Generally, the withdrawal of an appeal before the filing of the appellee's brief in this Court
is permitted. 5Assuming that the Court denies the withdrawal of the appeal in order that the mistake in the
penalty imposed may be corrected in the judgment of the case on the merits, 6 why should the appellate course
of the proceedings still have to be subject to such contingencies with the inevitable waste of time and effort
in the formulation of alternative theories in two sets of pleadings by both parties when with the decisive
sweep of the adjudgment here the doubts are dissipated and the real areas of contention are laid bare?
Nor is that all. Appellants have come to this Court through the medium of an appeal by writ of error from a
judgment of the trial court imposing the wrong penalty of reclusion perpetua. If the mistake in the penalty is
now rectified with the death sentence being substituted therefor, as undeniably it should be, then the case will
consequently be before this Court on automatic review. That provision calling for automatic review when capital
punishment is inflicted 7 serves equally the interests of both the defense and the prosecution through protective
features established by case law.
Thus, even if the accused had unnecessarily appealed from the judgment imposing the penalty of death and
he thereafter withdraws his appeal, the automatic review of the case shall nonetheless proceed, albeit without
the benefit of briefs or arguments from the accused. 8 The automatic review of the case shall proceed even if
the death convict shall escape, 9 as an exception to the provisions of Section 8, Rule 124, and such automatic
review cannot be waived. 10 The aforementioned beneficial effects are not provided for and may not be availed
of by the accused in an ordinary appeal to this Court.
The automatic review of the death sentence ensures the right of the condemned person to procedural due
process on appeal, and safeguards the interests of the State by exacting the corresponding penal sanction
decreed by law. The disposition adopted by the Court in this case subserves the ends of these fundamental
policies, hence my unqualified assent thereto.
VITUG, J., dissenting:
The ponencia itself indicates that the case against the convicted accused is already on appeal before this
Court. Thus, the instant petition, in my view, has become academic since an appeal brings the case wide open
for review and consideration. A ruling on the petition would be precipitate and might be so perceived as
peremptory on the imposition of the death penalty.
With all due respect, it is my personal view that if the Court is not disposed to dismiss the petition, it should at
the very least be consolidated with the appealed case.

Accordingly, I am constrained, at this time, to vote for the dismissal of the petition.
Davide, Jr., J. concurs.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-19650

September 29, 1966

CALTEX (PHILIPPINES), INC., petitioner-appellee,

vs.
ENRICO PALOMAR, in his capacity as THE POSTMASTER GENERAL, respondent-appellant.

Office of the Solicitor General for respondent and appellant.

Ross, Selph and Carrascoso for petitioner and appellee.

CASTRO, J.:
In the year 1960 the Caltex (Philippines) Inc. (hereinafter referred to as Caltex) conceived and laid the
groundwork for a promotional scheme calculated to drum up patronage for its oil products. Denominated
"Caltex Hooded Pump Contest", it calls for participants therein to estimate the actual number of liters a hooded
gas pump at each Caltex station will dispense during a specified period. Employees of the Caltex (Philippines)
Inc., its dealers and its advertising agency, and their immediate families excepted, participation is to be open
indiscriminately to all "motor vehicle owners and/or licensed drivers". For the privilege to participate, no fee or
consideration is required to be paid, no purchase of Caltex products required to be made. Entry forms are to be
made available upon request at each Caltex station where a sealed can will be provided for the deposit of
accomplished entry stubs.
A three-staged winner selection system is envisioned. At the station level, called "Dealer Contest", the
contestant whose estimate is closest to the actual number of liters dispensed by the hooded pump thereat is to
be awarded the first prize; the next closest, the second; and the next, the third. Prizes at this level consist of a
3-burner kerosene stove for first; a thermos bottle and a Ray-O-Vac hunter lantern for second; and an
Everready Magnet-lite flashlight with batteries and a screwdriver set for third. The first-prize winner in each
station will then be qualified to join in the "Regional Contest" in seven different regions. The winning stubs of
the qualified contestants in each region will be deposited in a sealed can from which the first-prize, secondprize and third-prize winners of that region will be drawn. The regional first-prize winners will be entitled to
make a three-day all-expenses-paid round trip to Manila, accompanied by their respective Caltex dealers, in
order to take part in the "National Contest". The regional second-prize and third-prize winners will receive cash
prizes of P500 and P300, respectively. At the national level, the stubs of the seven regional first-prize winners
will be placed inside a sealed can from which the drawing for the final first-prize, second-prize and third-prize
winners will be made. Cash prizes in store for winners at this final stage are: P3,000 for first; P2,000 for
second; Pl,500 for third; and P650 as consolation prize for each of the remaining four participants.
Foreseeing the extensive use of the mails not only as amongst the media for publicizing the contest but also
for the transmission of communications relative thereto, representations were made by Caltex with the postal
authorities for the contest to be cleared in advance for mailing, having in view sections 1954(a), 1982 and 1983
of the Revised Administrative Code, the pertinent provisions of which read as follows:
SECTION 1954. Absolutely non-mailable matter. No matter belonging to any of the following
classes, whether sealed as first-class matter or not, shall be imported into the Philippines through the
mails, or to be deposited in or carried by the mails of the Philippines, or be delivered to its addressee by
any officer or employee of the Bureau of Posts:
Written or printed matter in any form advertising, describing, or in any manner pertaining to, or
conveying or purporting to convey any information concerning any lottery, gift enterprise, or similar
scheme depending in whole or in part upon lot or chance, or any scheme, device, or enterprise for
obtaining any money or property of any kind by means of false or fraudulent pretenses,
representations, or promises.
"SECTION 1982. Fraud orders.Upon satisfactory evidence that any person or company is engaged in
conducting any lottery, gift enterprise, or scheme for the distribution of money, or of any real or personal
property by lot, chance, or drawing of any kind, or that any person or company is conducting any
scheme, device, or enterprise for obtaining money or property of any kind through the mails by means

of false or fraudulent pretenses, representations, or promises, the Director of Posts may instruct any
postmaster or other officer or employee of the Bureau to return to the person, depositing the same in
the mails, with the word "fraudulent" plainly written or stamped upon the outside cover thereof, any mail
matter of whatever class mailed by or addressed to such person or company or the representative or
agent of such person or company.
SECTION 1983. Deprivation of use of money order system and telegraphic transfer service.The
Director of Posts may, upon evidence satisfactory to him that any person or company is engaged in
conducting any lottery, gift enterprise or scheme for the distribution of money, or of any real or personal
property by lot, chance, or drawing of any kind, or that any person or company is conducting any
scheme, device, or enterprise for obtaining money or property of any kind through the mails by means
of false or fraudulent pretenses, representations, or promise, forbid the issue or payment by any
postmaster of any postal money order or telegraphic transfer to said person or company or to the agent
of any such person or company, whether such agent is acting as an individual or as a firm, bank,
corporation, or association of any kind, and may provide by regulation for the return to the remitters of
the sums named in money orders or telegraphic transfers drawn in favor of such person or company or
its agent.
The overtures were later formalized in a letter to the Postmaster General, dated October 31, 1960, in which the
Caltex, thru counsel, enclosed a copy of the contest rules and endeavored to justify its position that the contest
does not violate the anti-lottery provisions of the Postal Law. Unimpressed, the then Acting Postmaster General
opined that the scheme falls within the purview of the provisions aforesaid and declined to grant the requested
clearance. In its counsel's letter of December 7, 1960, Caltex sought a reconsideration of the foregoing stand,
stressing that there being involved no consideration in the part of any contestant, the contest was not, under
controlling authorities, condemnable as a lottery. Relying, however, on an opinion rendered by the Secretary of
Justice on an unrelated case seven years before (Opinion 217, Series of 1953), the Postmaster General
maintained his view that the contest involves consideration, or that, if it does not, it is nevertheless a "gift
enterprise" which is equally banned by the Postal Law, and in his letter of December 10, 1960 not only denied
the use of the mails for purposes of the proposed contest but as well threatened that if the contest was
conducted, "a fraud order will have to be issued against it (Caltex) and all its representatives".
Caltex thereupon invoked judicial intervention by filing the present petition for declaratory relief against
Postmaster General Enrico Palomar, praying "that judgment be rendered declaring its 'Caltex Hooded Pump
Contest' not to be violative of the Postal Law, and ordering respondent to allow petitioner the use of the mails
to bring the contest to the attention of the public". After issues were joined and upon the respective
memoranda of the parties, the trial court rendered judgment as follows:
In view of the foregoing considerations, the Court holds that the proposed 'Caltex Hooded Pump
Contest' announced to be conducted by the petitioner under the rules marked as Annex B of the
petitioner does not violate the Postal Law and the respondent has no right to bar the public distribution
of said rules by the mails.
The respondent appealed.
The parties are now before us, arrayed against each other upon two basic issues: first, whether the petition
states a sufficient cause of action for declaratory relief; and second, whether the proposed "Caltex Hooded
Pump Contest" violates the Postal Law. We shall take these up in seriatim.
1. By express mandate of section 1 of Rule 66 of the old Rules of Court, which was the applicable legal basis
for the remedy at the time it was invoked, declaratory relief is available to any person "whose rights are
affected by a statute . . . to determine any question of construction or validity arising under the . . . statute and
for a declaration of his rights thereunder" (now section 1, Rule 64, Revised Rules of Court). In amplification,

this Court, conformably to established jurisprudence on the matter, laid down certain conditions sine qua
non therefor, to wit: (1) there must be a justiciable controversy; (2) the controversy must be between persons
whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the
controversy; and (4) the issue involved must be ripe for judicial determination (Tolentino vs. The Board of
Accountancy, et al., G.R. No. L-3062, September 28, 1951; Delumen, et al. vs. Republic of the Philippines, 50
O.G., No. 2, pp. 576, 578-579; Edades vs. Edades, et al., G.R. No. L-8964, July 31, 1956). The gravamen of
the appellant's stand being that the petition herein states no sufficient cause of action for declaratory relief, our
duty is to assay the factual bases thereof upon the foregoing crucible.
As we look in retrospect at the incidents that generated the present controversy, a number of significant points
stand out in bold relief. The appellee (Caltex), as a business enterprise of some consequence, concededly has
the unquestioned right to exploit every legitimate means, and to avail of all appropriate media to advertise and
stimulate increased patronage for its products. In contrast, the appellant, as the authority charged with the
enforcement of the Postal Law, admittedly has the power and the duty to suppress transgressions thereof
particularly thru the issuance of fraud orders, under Sections 1982 and 1983 of the Revised Administrative
Code, against legally non-mailable schemes. Obviously pursuing its right aforesaid, the appellee laid out plans
for the sales promotion scheme hereinbefore detailed. To forestall possible difficulties in the dissemination of
information thereon thru the mails, amongst other media, it was found expedient to request the appellant for an
advance clearance therefor. However, likewise by virtue of his jurisdiction in the premises and construing the
pertinent provisions of the Postal Law, the appellant saw a violation thereof in the proposed scheme and
accordingly declined the request. A point of difference as to the correct construction to be given to the
applicable statute was thus reached. Communications in which the parties expounded on their respective
theories were exchanged. The confidence with which the appellee insisted upon its position was matched only
by the obstinacy with which the appellant stood his ground. And this impasse was climaxed by the appellant's
open warning to the appellee that if the proposed contest was "conducted, a fraud order will have to be issued
against it and all its representatives."
Against this backdrop, the stage was indeed set for the remedy prayed for. The appellee's insistent assertion of
its claim to the use of the mails for its proposed contest, and the challenge thereto and consequent denial by
the appellant of the privilege demanded, undoubtedly spawned a live controversy. The justiciability of the
dispute cannot be gainsaid. There is an active antagonistic assertion of a legal right on one side and a denial
thereof on the other, concerning a real not a mere theoretical question or issue. The contenders are as
real as their interests are substantial. To the appellee, the uncertainty occasioned by the divergence of views
on the issue of construction hampers or disturbs its freedom to enhance its business. To the appellant, the
suppression of the appellee's proposed contest believed to transgress a law he has sworn to uphold and
enforce is an unavoidable duty. With the appellee's bent to hold the contest and the appellant's threat to issue
a fraud order therefor if carried out, the contenders are confronted by the ominous shadow of an imminent and
inevitable litigation unless their differences are settled and stabilized by a tranquilizing declaration (Pablo y
Sen, et al. vs. Republic of the Philippines, G.R. No. L-6868, April 30, 1955). And, contrary to the insinuation of
the appellant, the time is long past when it can rightly be said that merely the appellee's "desires are thwarted
by its own doubts, or by the fears of others" which admittedly does not confer a cause of action. Doubt, if
any there was, has ripened into a justiciable controversy when, as in the case at bar, it was translated into a
positive claim of right which is actually contested (III Moran, Comments on the Rules of Court, 1963 ed., pp.
132-133, citing: Woodward vs. Fox West Coast Theaters, 36 Ariz., 251, 284 Pac. 350).
We cannot hospitably entertain the appellant's pretense that there is here no question of construction because
the said appellant "simply applied the clear provisions of the law to a given set of facts as embodied in the
rules of the contest", hence, there is no room for declaratory relief. The infirmity of this pose lies in the fact that
it proceeds from the assumption that, if the circumstances here presented, the construction of the legal
provisions can be divorced from the matter of their application to the appellee's contest. This is not feasible.
Construction, verily, is the art or process of discovering and expounding the meaning and intention of the
authors of the law with respect to its application to a given case, where that intention is rendered doubtful,

amongst others, by reason of the fact that the given case is not explicitly provided for in the law (Black,
Interpretation of Laws, p. 1). This is precisely the case here. Whether or not the scheme proposed by the
appellee is within the coverage of the prohibitive provisions of the Postal Law inescapably requires an inquiry
into the intended meaning of the words used therein. To our mind, this is as much a question of construction or
interpretation as any other.
Nor is it accurate to say, as the appellant intimates, that a pronouncement on the matter at hand can amount to
nothing more than an advisory opinion the handing down of which is anathema to a declaratory relief action. Of
course, no breach of the Postal Law has as yet been committed. Yet, the disagreement over the construction
thereof is no longer nebulous or contingent. It has taken a fixed and final shape, presenting clearly defined
legal issues susceptible of immediate resolution. With the battle lines drawn, in a manner of speaking, the
propriety nay, the necessity of setting the dispute at rest before it accumulates the asperity distemper,
animosity, passion and violence of a full-blown battle which looms ahead (III Moran, Comments on the Rules of
Court, 1963 ed., p. 132 and cases cited), cannot but be conceded. Paraphrasing the language in Zeitlin vs.
Arnebergh 59 Cal., 2d., 901, 31 Cal. Rptr., 800, 383 P. 2d., 152, cited in 22 Am. Jur., 2d., p. 869, to deny
declaratory relief to the appellee in the situation into which it has been cast, would be to force it to choose
between undesirable alternatives. If it cannot obtain a final and definitive pronouncement as to whether the
anti-lottery provisions of the Postal Law apply to its proposed contest, it would be faced with these choices: If it
launches the contest and uses the mails for purposes thereof, it not only incurs the risk, but is also actually
threatened with the certain imposition, of a fraud order with its concomitant stigma which may attach even if the
appellee will eventually be vindicated; if it abandons the contest, it becomes a self-appointed censor, or permits
the appellant to put into effect a virtual fiat of previous censorship which is constitutionally unwarranted. As we
weigh these considerations in one equation and in the spirit of liberality with which the Rules of Court are to be
interpreted in order to promote their object (section 1, Rule 1, Revised Rules of Court) which, in the instant
case, is to settle, and afford relief from uncertainty and insecurity with respect to, rights and duties under a law
we can see in the present case any imposition upon our jurisdiction or any futility or prematurity in our
intervention.
The appellant, we apprehend, underrates the force and binding effect of the ruling we hand down in this case if
he believes that it will not have the final and pacifying function that a declaratory judgment is calculated to
subserve. At the very least, the appellant will be bound. But more than this, he obviously overlooks that in this
jurisdiction, "Judicial decisions applying or interpreting the law shall form a part of the legal system" (Article 8,
Civil Code of the Philippines). In effect, judicial decisions assume the same authority as the statute itself and,
until authoritatively abandoned, necessarily become, to the extent that they are applicable, the criteria which
must control the actuations not only of those called upon to abide thereby but also of those in duty bound to
enforce obedience thereto. Accordingly, we entertain no misgivings that our resolution of this case will
terminate the controversy at hand.
It is not amiss to point out at this juncture that the conclusion we have herein just reached is not without
precedent. In Liberty Calendar Co. vs. Cohen, 19 N.J., 399, 117 A. 2d., 487, where a corporation engaged in
promotional advertising was advised by the county prosecutor that its proposed sales promotion plan had the
characteristics of a lottery, and that if such sales promotion were conducted, the corporation would be subject
to criminal prosecution, it was held that the corporation was entitled to maintain a declaratory relief action
against the county prosecutor to determine the legality of its sales promotion plan. In pari materia, see
also: Bunis vs. Conway, 17 App. Div. 2d., 207, 234 N.Y.S. 2d., 435; Zeitlin vs. Arnebergh, supra; Thrillo, Inc.
vs. Scott, 15 N.J. Super. 124, 82 A. 2d., 903.
In fine, we hold that the appellee has made out a case for declaratory relief.
2. The Postal Law, chapter 52 of the Revised Administrative Code, using almost identical terminology in
sections 1954(a), 1982 and 1983 thereof, supra, condemns as absolutely non-mailable, and empowers the
Postmaster General to issue fraud orders against, or otherwise deny the use of the facilities of the postal

service to, any information concerning "any lottery, gift enterprise, or scheme for the distribution of money, or of
any real or personal property by lot, chance, or drawing of any kind". Upon these words hinges the resolution
of the second issue posed in this appeal.
Happily, this is not an altogether untrodden judicial path. As early as in 1922, in "El Debate", Inc. vs. Topacio,
44 Phil., 278, 283-284, which significantly dwelt on the power of the postal authorities under the
abovementioned provisions of the Postal Law, this Court declared that
While countless definitions of lottery have been attempted, the authoritative one for this jurisdiction is
that of the United States Supreme Court, in analogous cases having to do with the power of the United
States Postmaster General, viz.: The term "lottery" extends to all schemes for the distribution of prizes
by chance, such as policy playing, gift exhibitions, prize concerts, raffles at fairs, etc., and various forms
of gambling. The three essential elements of a lottery are: First, consideration; second, prize; and third,
chance. (Horner vs. States [1892], 147 U.S. 449; Public Clearing House vs. Coyne [1903], 194 U.S.,
497; U.S. vs. Filart and Singson [1915], 30 Phil., 80; U.S. vs. Olsen and Marker [1917], 36 Phil., 395;
U.S. vs. Baguio [1919], 39 Phil., 962; Valhalla Hotel Construction Company vs. Carmona, p. 233, ante.)
Unanimity there is in all quarters, and we agree, that the elements of prize and chance are too obvious in the
disputed scheme to be the subject of contention. Consequently as the appellant himself concedes, the field of
inquiry is narrowed down to the existence of the element of consideration therein. Respecting this matter, our
task is considerably lightened inasmuch as in the same case just cited, this Court has laid down a definitive
yard-stick in the following terms
In respect to the last element of consideration, the law does not condemn the gratuitous distribution of
property by chance, if no consideration is derived directly or indirectly from the party receiving the
chance, but does condemn as criminal schemes in which a valuable consideration of some kind is paid
directly or indirectly for the chance to draw a prize.
Reverting to the rules of the proposed contest, we are struck by the clarity of the language in which the
invitation to participate therein is couched. Thus
No puzzles, no rhymes? You don't need wrappers, labels or boxtops? You don't have to buy anything?
Simply estimate the actual number of liter the Caltex gas pump with the hood at your favorite Caltex
dealer will dispense from to , and win valuable prizes . . . ." .
Nowhere in the said rules is any requirement that any fee be paid, any merchandise be bought, any service be
rendered, or any value whatsoever be given for the privilege to participate. A prospective contestant has but to
go to a Caltex station, request for the entry form which is available on demand, and accomplish and submit the
same for the drawing of the winner. Viewed from all angles or turned inside out, the contest fails to exhibit any
discernible consideration which would brand it as a lottery. Indeed, even as we head the stern injunction, "look
beyond the fair exterior, to the substance, in order to unmask the real element and pernicious tendencies which
the law is seeking to prevent" ("El Debate", Inc. vs. Topacio, supra, p. 291), we find none. In our appraisal, the
scheme does not only appear to be, but actually is, a gratuitous distribution of property by chance.
There is no point to the appellant's insistence that non-Caltex customers who may buy Caltex products simply
to win a prize would actually be indirectly paying a consideration for the privilege to join the contest. Perhaps
this would be tenable if the purchase of any Caltex product or the use of any Caltex service were a prerequisite to participation. But it is not. A contestant, it hardly needs reiterating, does not have to buy anything or
to give anything of value.1awphl.nt
Off-tangent, too, is the suggestion that the scheme, being admittedly for sales promotion, would naturally
benefit the sponsor in the way of increased patronage by those who will be encouraged to prefer Caltex

products "if only to get the chance to draw a prize by securing entry blanks". The required element of
consideration does not consist of the benefit derived by the proponent of the contest. The true test, as laid
down in People vs. Cardas, 28 P. 2d., 99, 137 Cal. App. (Supp.) 788, is whether the participant pays a valuable
consideration for the chance, and not whether those conducting the enterprise receive something of value in
return for the distribution of the prize. Perspective properly oriented, the standpoint of the contestant is all that
matters, not that of the sponsor. The following, culled from Corpus Juris Secundum, should set the matter at
rest:
The fact that the holder of the drawing expects thereby to receive, or in fact does receive, some benefit
in the way of patronage or otherwise, as a result of the drawing; does not supply the element of
consideration.Griffith Amusement Co. vs. Morgan, Tex. Civ. App., 98 S.W., 2d., 844" (54 C.J.S., p. 849).
Thus enlightened, we join the trial court in declaring that the "Caltex Hooded Pump Contest" proposed by the
appellee is not a lottery that may be administratively and adversely dealt with under the Postal Law.
But it may be asked: Is it not at least a "gift enterprise, or scheme for the distribution of money, or of any real or
personal property by lot, chance, or drawing of any kind", which is equally prescribed? Incidentally, while the
appellant's brief appears to have concentrated on the issue of consideration, this aspect of the case cannot be
avoided if the remedy here invoked is to achieve its tranquilizing effect as an instrument of both curative and
preventive justice. Recalling that the appellant's action was predicated, amongst other bases, upon Opinion
217, Series 1953, of the Secretary of Justice, which opined in effect that a scheme, though not a lottery for
want of consideration, may nevertheless be a gift enterprise in which that element is not essential, the
determination of whether or not the proposed contest wanting in consideration as we have found it to be
is a prohibited gift enterprise, cannot be passed over sub silencio.
While an all-embracing concept of the term "gift enterprise" is yet to be spelled out in explicit words, there
appears to be a consensus among lexicographers and standard authorities that the term is commonly applied
to a sporting artifice of under which goods are sold for their market value but by way of inducement each
purchaser is given a chance to win a prize (54 C.J.S., 850; 34 Am. Jur., 654; Black, Law Dictionary, 4th ed., p.
817; Ballantine, Law Dictionary with Pronunciations, 2nd ed., p. 55; Retail Section of Chamber of Commerce of
Plattsmouth vs. Kieck, 257 N.W., 493, 128 Neb. 13; Barker vs. State, 193 S.E., 605, 56 Ga. App., 705; Bell vs.
State, 37 Tenn. 507, 509, 5 Sneed, 507, 509). As thus conceived, the term clearly cannot embrace the scheme
at bar. As already noted, there is no sale of anything to which the chance offered is attached as an inducement
to the purchaser. The contest is open to all qualified contestants irrespective of whether or not they buy the
appellee's products.
Going a step farther, however, and assuming that the appellee's contest can be encompassed within the
broadest sweep that the term "gift enterprise" is capable of being extended, we think that the appellant's pose
will gain no added comfort. As stated in the opinion relied upon, rulings there are indeed holding that a gift
enterprise involving an award by chance, even in default of the element of consideration necessary to
constitute a lottery, is prohibited (E.g.: Crimes vs. States, 235 Ala 192, 178 So. 73; Russell vs. Equitable Loan
& Sec. Co., 129 Ga. 154, 58 S.E., 88; State ex rel. Stafford vs. Fox-Great Falls Theater Corporation, 132 P.
2d., 689, 694, 698, 114 Mont. 52). But this is only one side of the coin. Equally impressive authorities declare
that, like a lottery, a gift enterprise comes within the prohibitive statutes only if it exhibits the tripartite elements
of prize, chance and consideration (E.g.: Bills vs. People, 157 P. 2d., 139, 142, 113 Colo., 326; D'Orio vs.
Jacobs, 275 P. 563, 565, 151 Wash., 297; People vs. Psallis, 12 N.Y.S., 2d., 796; City and County of Denver
vs. Frueauff, 88 P., 389, 394, 39 Colo., 20, 7 L.R.A., N.S., 1131, 12 Ann. Cas., 521; 54 C.J.S., 851, citing:
Barker vs. State, 193 S.E., 605, 607, 56 Ga. App., 705; 18 Words and Phrases, perm. ed., pp. 590-594). The
apparent conflict of opinions is explained by the fact that the specific statutory provisions relied upon are not
identical. In some cases, as pointed out in 54 C.J.S., 851, the terms "lottery" and "gift enterprise" are used
interchangeably (Bills vs. People, supra); in others, the necessity for the element of consideration or chance
has been specifically eliminated by statute. (54 C.J.S., 351-352, citing Barker vs. State, supra; State ex rel.

Stafford vs. Fox-Great Falls Theater Corporation, supra). The lesson that we derive from this state of the
pertinent jurisprudence is, therefore, that every case must be resolved upon the particular phraseology of the
applicable statutory provision.
Taking this cue, we note that in the Postal Law, the term in question is used in association with the word
"lottery". With the meaning of lottery settled, and consonant to the well-known principle of legal
hermeneutics noscitur a sociis which Opinion 217 aforesaid also relied upon although only insofar as the
element of chance is concerned it is only logical that the term under a construction should be accorded no
other meaning than that which is consistent with the nature of the word associated therewith. Hence, if lottery
is prohibited only if it involves a consideration, so also must the term "gift enterprise" be so construed.
Significantly, there is not in the law the slightest indicium of any intent to eliminate that element of consideration
from the "gift enterprise" therein included.
This conclusion firms up in the light of the mischief sought to be remedied by the law, resort to the
determination thereof being an accepted extrinsic aid in statutory construction. Mail fraud orders, it is
axiomatic, are designed to prevent the use of the mails as a medium for disseminating printed matters which
on grounds of public policy are declared non-mailable. As applied to lotteries, gift enterprises and similar
schemes, justification lies in the recognized necessity to suppress their tendency to inflame the gambling spirit
and to corrupt public morals (Com. vs. Lund, 15 A. 2d., 839, 143 Pa. Super. 208). Since in gambling it is
inherent that something of value be hazarded for a chance to gain a larger amount, it follows ineluctably that
where no consideration is paid by the contestant to participate, the reason behind the law can hardly be said to
obtain. If, as it has been held
Gratuitous distribution of property by lot or chance does not constitute "lottery", if it is not resorted to as
a device to evade the law and no consideration is derived, directly or indirectly, from the party receiving
the chance, gambling spirit not being cultivated or stimulated thereby. City of Roswell vs. Jones, 67 P.
2d., 286, 41 N.M., 258." (25 Words and Phrases, perm. ed., p. 695, emphasis supplied).
we find no obstacle in saying the same respecting a gift enterprise. In the end, we are persuaded to hold that,
under the prohibitive provisions of the Postal Law which we have heretofore examined, gift enterprises and
similar schemes therein contemplated are condemnable only if, like lotteries, they involve the element of
consideration. Finding none in the contest here in question, we rule that the appellee may not be denied the
use of the mails for purposes thereof.
Recapitulating, we hold that the petition herein states a sufficient cause of action for declaratory relief, and that
the "Caltex Hooded Pump Contest" as described in the rules submitted by the appellee does not transgress
the provisions of the Postal Law.
ACCORDINGLY, the judgment appealed from is affirmed. No costs.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ.,
concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. L-39990 July 22, 1975

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RAFAEL LICERA, defendant-appellant.
Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista and Solicitor
Pedro A. Ramirez for plaintiff-appellee.
Romeo Mercado (as Counsel de Oficio) for defendant-appellant.

CASTRO, J.:
This is an appeal, on a question of law, by Rafael Licera from the judgment dated August 14, 1968 of the Court
of First Instance of Occidental Mindoro convicting him of the crime of illegal possession of firearm and
sentencing him to imprisonment of five (5) years. We reverse the judgment of conviction, for the reasons
hereunder stated.
On December 3, 1965 the Chief of Police of Abra de Ilog, Occidental Mindoro, filed a complaint, subscribed
and sworn to by him, with the municipal court of the said municipality, charging Rafael Licera with illegal
possession of a Winchester rifle, Model 55, Caliber .30. On August 13, 1966 the municipal court rendered
judgment finding Licera guilty of the crime charged, sentencing him to suffer an indeterminate penalty ranging
five years and one day to six years and eight months of imprisonment. Licera appealed to the Court of First
Instance of Occidental Mindoro.
In the Court of First Instance, the parties agreed to the joint trial of the case for illegal possession of firearm
and another case, likewise filed against Licera with the municipal court but already forwarded to the said Court
of First Instance, for assault upon an agent of a person in authority, the two offenses having arisen from the
same occasion: apprehension of Licera by the Chief of Police and a patrolman of Abra de Ilog on December 2,
1965 for possession of the Winchester rifle without the requisite license or permit therefor.
On August 14, 1968 the court a quo rendered judgment acquitting Licera of the charge of assault upon an
agent of a person in authority, but convicting him of illegal possession of firearm, sentencing him to suffer five
years of imprisonment, and ordering the forfeiture of the Winchester rifle in favor of the Government.

Licera's appeal to the Court of Appeals was certified on October 16, 1974 to this Court as involving only one
question of law.
Licera invokes as his legal justification for his possession of the Winschester rifle his appointment as secret
agent on December 11, 1961 by Governor Feliciano Leviste of Batangas. He claims that as secret agent, he
was a "peace officer" and, thus, pursuant to People vs. Macarandang, 1 was exempt from the requirements
relating to the issuance of license to possess firearms. He alleges that the court a quo erred in relying on the
later case of People vs. Mapa 2 which held that section 879 of the Revised Administrative Code provides no
exemption for persons appointed as secret agents by provincial governors from the requirements relating to
firearm licenses.
The principal question thus posed calls for a determination of the rule that should be applied to the case at bar
that enunciated in Macarandang or that in Mapa.
The appointment given to Licera by Governor Leviste which bears the date "December 11, 1961" includes a
grant of authority to Licera to possess the Winchester rifle in these terms: "In accordance with the decision of
the Supreme Court in G.R. No. L-12088 dated December 23, 1959, you will have the right to bear a firearm ...
for use in connection with the performance of your duties." Under the rule then prevailing, enunciated
in Macarandang, 3the appointment of a civilian as a "secret agent to assist in the maintenance of peace and
order campaigns and detection of crimes sufficiently put[s] him within the category of a "peace officer"
equivalent even to a member of the municipal police" whom section 879 of the Revised Administrative Code
exempts from the requirements relating to firearm licenses.
Article 8 of the Civil Code of the Philippines decrees that judicial decisions applying or interpreting the laws or
the Constitution form part of this jurisdiction's legal system. These decisions, although in themselves not laws,
constitute evidence of what the laws mean. The application or interpretation placed by the Court upon a law is
part of the law as of the date of the enactment of the said law since the Court's application or interpretation
merely establishes the contemporaneous legislative intent that the construed law purports to carry into effect. 4
At the time of Licera's designation as secret agent in 1961 and at the time of his apprehension for possession
of the Winchester rifle without the requisite license or permit therefor in 1965, the Macarandang rule the
Courts interpretation of section 879 of the Revised Administrative Code - formed part of our jurisprudence and,
hence, of this jurisdiction's legal system. Mapa revoked the Macarandang precedent only in 1967. Certainly,
where a new doctrine abrogates an old rule, the new doctrine should operate respectively only and should not
adversely affect those favored by the old rule, especially those who relied thereon and acted on the faith
thereof. This holds more especially true in the application or interpretation of statutes in the field of penal law,
for, in this area, more than in any other, it is imperative that the punishability of an act be reasonably foreseen
for the guidance of society. 5
Pursuant to the Macarandang rule obtaining not only at the time of Licera's appointment as secret agent, which
appointment included a grant of authority to possess the Winchester rifle, but as well at the time as of his
apprehension, Licera incurred no criminal liability for possession of the said rifle, notwithstanding his noncompliance with the legal requirements relating to firearm licenses.1wph1.t
ACCORDINGLY, the judgment a quo is reversed, and Rafael Licera is hereby acquitted. Costs de oficio.
Makasiar, Esguerra, Muoz Palma and Martin, JJ., concur.
Teehankee, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-40902 February 18, 1976
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HONORABLE JUDGE AMANTE P. PURISIMA, COURT OF FIRST INSTANCE OF MANILA, BRANCH VII,
and JOSEFA PESIMO, respondents.
Jose L. Gamboa, Jose D. Cajucom & Emilio Llamanzares, City Fiscal's Office, Manila for petitioner.

MARTIN, J.:
This is a question of concurrent jurisdiction between a court of first instance and a city court in the trial of a
criminal indictment where the penalty provided for by law is imprisonment of not less than one (1) month nor
more than six (6) months or a fine of not less than P200.00 nor more than P500.00, or both, in the discretion of
the court.
On May 9, 1975, the City Fiscal of Manila charged private respondent Josefa Pesimo before the respondent
Court of First Instance of Manila for violation of Section 16, Act 3753, otherwise known as the "Civil Register
Law"1 in that:
(O)n or about January 20, 1969, in the City of Manila, Philippines, the said accused did then and
there wilfully, unlawfully, feloniously and knowingly make false statements in the Certificate of
Birth of her son, CARLOS PESIMO CUCUECO, JR., who was born on said date, which
Certificate of Live Birth was presented for in the Civil Registrar, this City, by then and there
making it appear, as it did appear, that her said son is her legitimate child with one CARLOS
LAYUG CUCUECO and that said accused was married to said Carlos Layug Cucueco on April
3, 1962, at San Jose, Camarines Sur, the said accused well knowing the same to be false and
untrue as she has never been married to the former and that Carlos Pesimo Cucueco, Jr., is not
their legitimate child.
This criminal act is punishable with imprisonment of not less than one (1) month nor more than six (6) months
or a fine of not less than P200.00 nor more than P500.00, or both, in the discretion of the court.

On May 26, 1975, respondent court dismissed the case ex mere motu for the reason that the offense
complained of does not come within the perimeter of its jurisdiction. Respondent court maintains that the
prescribed penalty of one (1) month to six (6) months imprisonment is below the floor limit of its original
jurisdiction in criminal cases, since the said jurisdiction starts only from those offenses where the penalty of
imprisonment, in particular, exceeds six (6) months. Because of this, jurisdiction belongs exclusively to the City
Court of Manila which has the competence to impose the penalty of imprisonment and fine, alternatively or
jointly.
The People moved for a reconsideration of the dismissal order, but the respondent court denied the motion in
its Order of June 10, 1975.
Forthwith, petitioner elevated the matter to Us thru this present petition for review on certiorari.
We find the petition to be meritorious.
1. Section 44 (f) of the Judiciary Act of 1948, as amended, provides that Courts of First Instance shall have
original jurisdiction "(i)n all criminal cases in which the penalty provided by law is imprisonment for more than
six months, or a fine of more than two hundred pesos." On the other hand, Section 87 (c) of the same Act
confers on municipal courts original jurisdiction to try "offenses in which the penalty provided by law is
imprisonment for not more than three years, or a fine of not more than three hundred pesos, or both such fine
and imprisonment" except violations of election laws. The same section provides that municipal courts of
provincial capitals and city courts "shall have like jurisdiction as the Court of First Instance to try parties
charged with an offense committed within their respective jurisdictions, in which the penalty provided by law
does not exceed prision correcional or imprisonment for not more than six years or fine not exceeding six
thousand pesos or both." These quoted statutory provisions plainly import that the exclusive jurisdiction of
municipal courts in criminal cases, which is commonly shared by city courts and municipal courts of the
provincial capitals, covers only those offenses where the penalty prescribed by law does not exceed six (6)
months imprisonment or two hundred pesos fine. The moment the penalty for the offense exceeds 6-month
imprisonment or P200 fine, jurisdiction inevitably becomes concurrent with the courts of first instance: for
municipal courts, up to those offenses punishable with three (8) years imprisonment or P3,000.00 fine; and for
city courts and municipal courts of provincial capitals, up to those offense with penalty of six (6) years
imprisonment or P6,000.00 fine. As the Court ruled in Esperat v. Avila, 2 "... the exclusive original jurisdiction of
the justice of the peace and municipal courts is confined only to cases where the prescribed penalty is
imprisonment for 6 months or less, or fine of P200.00 or less, whereas, the exclusive original jurisdiction of the
court of first instance covers cases where the penalty is incarceration for more than three (3) years (or 6 years
in the case of city courts and municipal courts in provincial capitals), or fine for more than P3,000.00 (or
P6,000.00 in proper cases), or both such imprisonment and fine. Between these exclusive jurisdictions lies a
zone where the jurisdiction is concurrent." Section 44 (f) reveals no inconsistency with Section 87 (c). These
two sections can stand together and can be given "conjoint, not discordant, effect. 3 There is no constitutional
impediment to the conferment on courts of different levels of concurrent jurisdiction over the same offense or
offenses. 4 The amendment of Section 87 (c) of Republic Act No. 3828 in 1963, enlarging the original
jurisdiction of municipal and city courts assumingly to lighten the burden of the courts of first instance, was not
meant to obliterate the concurrent criminal jurisdiction of the courts of first instance under Section 44 (f)
whenever the offense is penalized with imprisonment for more than six months or a fine of more than 200
pesos. 5 That notwithstanding, the jurisdiction of the courts of first instance remains the same, although an area
was left where said jurisdiction is to be exercised concurrently with the inferior courts. 6 With respect to the
eleven (11) offenses enumerated in Section 87 (c), 7 the jurisdiction of the municipal and city courts is coextensive with that of the courts of first instance. 8Said Section 87 (c) cannot be construed as conferring
exclusive original jurisdiction on judges of municipal and city courts over these specified cases without
nullifying pro tanto Section 44 (f). 9 At most, the exclusive original jurisdiction of the municipal and city courts
over the same obtains only when the imposable penalty does not exceed 6 months imprisonment or P200 fine.

2. The respondent court erred in disclaiming jurisdiction over the case for the expedient reason that the penalty
of imprisonment prescribed by law for the offense charged reaches only the maximum of six (6) months. It
must be observed that imprisonment is not the sole penalty for the crime charged. There is also the alternative
penalty of fine not less than P200.00 nor more than P500.00. This penalty of fine alone sufficiently brings the
offense charged within the jurisdictional range of the court of first instance, since the jurisdiction of said
court originates "(i)n all criminal cases in which the penalty provided by law is ... a fine of more than two
hundred pesos." More over, the violated law allows the imposition of both imprisonment and fine, or arresto
mayor and fine not exceeding P500.00, a clear source from which the court of first instance could validly draw
authority to take cognizance of the case. As the Court held in Esperat v. Avila, "(s)ince the crime of grave
coercion is punishable with arresto mayor (imprisonment from on month and one day to six months) and fine
not exceeding P500.00, said offense comes within the area of concurrent jurisdiction of municipal or city courts
and court of first instance.10 In said case, the jurisdiction becomes concurrent because the fine exceeds P200.
It is a fundamental rule that the jurisdiction of a court is determined by the amount of fine and
imprisonment. 11 If the crime charged is penalized with imprisonment not exceeding six months or a fine not
more than P200.00, the municipal court has original jurisdiction; otherwise it is the court of first instance. 12
Respondent court further refused jurisdiction because the discretion afforded it under the law, i.e., to impose
the penalty imprisonment, or fine, or both, cannot be exercised by it, since the Penalty of imprisonment "is
basically below its jurisdictional reach." Respondent court's thesis suffers from a congenital failure to properly
seize the issue involved. The issue here is one of jurisdiction, of a court's legal competence to try a case ab
origene. In criminal prosecutions, it is settled that the jurisdiction of the court is not determined by what may be
meted out to the offender after trial 13 or even by the result of the evidence that would be presented at the
trial, 14 but by the extent of the penalty which the law imposes for the misdemeanor, crime or violation charged
in the complaint. If the facts recited in the complaint and the punishment provided for by law are sufficient to
show that the court in which the complaint is presented has jurisdiction, that court must assume jurisdiction. 15
3. There is no question that the fine ranging from P200 to P500 prescribed by Section 16 of Act 3753, Civil
Register Law, for the violation charged enters the realm of jurisdiction of the respondent court of first instance
which, inter alia, originates from those offenses punishable with a fine exceeding P200.00. nonetheless, the
jurisdiction is concurrent with the municipal and city courts, so that, the filing of the information against private
respondent with the respondent Court of First Instance vested authority in the latter court to retain and try the
same. 16 It is an axiom in procedural law that where several courts have concurrent jurisdiction over the same
offense, the court which first acquires. jurisdiction of the prosecution retains it to the exclusion of the others. 17
ACCORDINGLY, the orders subject matter of this petition are hereby reversed and set aside, and the case
ordered remanded to the court a quo with instructions to proceed with tile trial on the merits, after arraignment
of the accused.
No pronouncement as to costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Esguerra and Muoz Palma, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-5691 December 27, 1910
S. D. MARTINEZ and his wife, CARMEN ONG DE MARTINEZ, plaintiffs-appellees,
vs.
WILLIAM VAN BUSKIRK, defendant-appellant.
Lionel D. Hargis for appellant.
Sanz and Oppisso for appellee.

MORELAND, J.:
The facts found by the trial court are undisputed by either party in this case. They are
That on the 11th day of September, 1908, the plaintiff, Carmen Ong de Martinez, was riding in a
carromata on Calle Real, district of Ermita, city of Manila, P.I., along the left-hand side of the street as
she was going, when a delivery wagon belonging to the defendant used for the purpose of
transportation of fodder by the defendant, and to which was attached a pair of horses, came along the
street in the opposite direction to that the in which said plaintiff was proceeding, and that thereupon the
driver of the said plaintiff's carromata, observing that the delivery wagon of the defendant was coming
at great speed, crowded close to the sidewalk on the left-hand side of the street and stopped, in order
to give defendant's delivery wagon an opportunity to pass by, but that instead of passing by the
defendant's wagon and horses ran into the carromata occupied by said plaintiff with her child and
overturned it, severely wounding said plaintiff by making a serious cut upon her head, and also injuring
the carromata itself and the harness upon the horse which was drawing it.
xxx

xxx

xxx

These facts are not dispute, but the defendant presented evidence to the effect that the cochero, who
was driving his delivery wagon at the time the accident occurred, was a good servant and was
considered a safe and reliable cochero; that the delivery wagon had sent to deliver some forage at
Paco Livery Stable on Calle Herran, and that for the purpose of delivery thereof the cochero driving the
team as defendant's employee tied the driving lines of the horses to the front end of the delivery wagon
and then went back inside of the wagon for the purpose of unloading the forage to be delivered; that
while unloading the forage and in the act of carrying some of it out, another vehicle drove by, the driver
of which cracked a whip and made some other noises, which frightened the horses attached to the
delivery wagon and they ran away, and the driver was thrown from the inside of the wagon out through
the rear upon the ground and was unable to stop the horses; that the horses then ran up and on which
street they came into collision with the carromata in which the plaintiff, Carmen Ong de Martinez, was
riding.
The defendant himself was not with the vehicle on the day in question.
Upon these facts the court below found the defendant guilty of negligence and gave judgment against him for
P442.50, with interest thereon at the rate of 6 per cent per annum from the 17th day of October, 1908, and for
the costs of the action. The case is before us on an appeal from that judgment.
There is no general law of negligence in the Philippine Islands except that embodied in the Civil Code. The
provisions of that code pertinent to this case are
Art. 1902. A person who by an act or omission causes damage to another when there is fault or
negligence shall be obliged to repair the damage so done.
Art. 1903. The obligation imposed by preceding article is demandable, not only for personal acts and
omissions, but also for those of the persons for whom they should be responsible.
The father, and on his death or incapacity the mother, is liable for the damages caused by the minors
who live with them.
Guardians are liable for the damages caused by minors or incapacitated persons who are under their
authority and live with them.
Owners of directors of an establishment or enterprise are equally liable for the damages caused by the
employees in the service of the branches in which the latter may be employed or on account of their
duties.
The State is liable in this sense when it acts through a special agent, but not when the damages should
have been caused by the official to whom properly it pertained to do the act performed, in which case
the provisions of the preceding article shall be applicable.
Finally, masters or directors of arts and trades are liable for the damages caused by their pupils or
apprentices while they are under their custody.
The liability referred to in this article shall cease when the persons mentioned therein prove that they
employed all the diligence of a good father of a family to avoid the damage.
Passing the question whether or not an employer who has furnished a gentle and tractable team and a trusty
and capable driver is, under the last paragraph of the above provisions, liable for the negligence of such driver
in handling the team, we are of the opinion that the judgment must be reversed upon the ground that the
evidence does not disclose that the cochero was negligent.

While the law relating to negligence in this jurisdiction may possibly be some what different from that in AngloSaxon countries, a question we do not now discuss, the rules under which the fact of negligence is determined
are, nevertheless, generally the same. That is to say, while the law designating the person responsible for a
negligent act may not be the same here as in many jurisdictions, the law determining what is a negligent act is
the same here, generally speaking, as elsewhere. (Supreme court of Spain, 4 December, 1903; 16 May, 1893;
27 June, 1894; 9 April, 1896; 14 March, 1901; 2 March, 1904; 7 February, 1905; 16 June, 1905; 23 June, 1905;
13 April, 1903; 7 March, 1902; 12 June, 1900; 2 March, 1907; 18 March, 1898; 3 June, 1901.)
It appears from the undisputed evidence that the horses which caused the damage were gentle and tractable;
that the cochero was experienced and capable; that he had driven one of the horses several years and the
other five or six months; that he had been in the habit, during all that time, of leaving them in the condition in
which they were left on the day of the accident; that they had never run away up to that time and there had
been, therefore, no accident due to such practice; that to leave the horses and assist in unloading the
merchandise in the manner described on the day of the accident was the custom of all cochero who delivered
merchandise of the character of that which was being delivered by the cochero of the defendant on the day in
question, which custom was sanctioned by their employers.
In our judgment, the cochero of the defendant was not negligent in leaving the horses in the manner described
by the evidence in this case, either under Spanish or American jurisprudence. (Lynch vs. Nurdin, 1 Q. B., 422;
Rumsey vs. Nelson, 58 Vt., 590; Drake vs. Mount, 33 N. J. L., 442; Hoboken Land and Improvement
Co. vs. Lally, 48 N. J. L., 604; Wasmer vs. D. L. & W. R. R. Co., 80 N. Y., 212.) lawphi1.net
In the case of Hayman vs. Hewitt (Peake N. P. Cas., pt. 2, p. 170), Lord Kenyon said:
He was performing his duty while removing the goods into the house, and, if every person who suffered
a cart to remain in the street while he took goods out of it was obliged to employ another to look after
the horses, it would be impossible for the business of the metropolis to go on.
In the case of Griggs vs. Fleckenstein (14 Minn., 81), the court said:
The degree of care required of the plaintiff, or those in charged of his horse, at the time of the injury, is
that which would be exercised by a person of ordinary care and prudence under like circumstances. It
can not be said that the fact of leaving the horse unhitched is in itself negligence. Whether it is
negligence to leave a horse unhitched must be depend upon the disposition of the horse; whether he
was under the observation and control of some person all the time, and many other circumstances; and
is a question to be determined by the jury from the facts of each case.
In the case of Belles vs. Kellner (67 N. J. L., 255), it was held that it was error on the part of the trial court to
refuse to charge that "it is not negligence for the driver of a quite, gentle horse to leave him unhitched and
otherwise unattended on the side of a public highways while the driver is upon the sidewalk loading goods on
the wagon." The said court closed its opinion with these words:
There was evidence which could have fully justified the jury in finding that the horse was quite and
gentle, and that the driver was upon the sidewalk loading goods on the wagon, at time of the alleged
injury, and that the horse had been used for years in that way without accident. The refusal of the trial
court to charge as requested left the jury free to find was verdict against the defendant, although the
jury was convinced that these facts were proven.lawphil.net
In the case of Southworth vs. Ry. Co. (105 Mass., 342), it was held:
That evidence that a servant, whom traders employed to deliver goods, upon stopping with his horse
and wagon to deliver a parcel at a house from fifty to a hundred rods from a railroad crossing, left the

horse unfastened for four or five minutes while he was in the house, knowing that it was not afraid of
cars, and having used it for three or four months without ever hitching it or knowing it to start, is not
conclusive, as a matter of law, of a want of due care on his part.
The duty, a violation of which is claimed to be negligence in the respect in question, is to exercise reasonable
care and prudence. Where reasonable care is employed in doing an act not itself illegal or inherently likely to
produce damage to others, there will be no liability, although damage in fact ensues. (Milwaukee Ry.
Co. vs. Arms, 91 U. S., 489; Parrott vs. Wells, 15 Wall., 524; Brown vs. Kendall, 6 Cushing, 292; Jackson
Architectural Iron Works vs.Hurlbut, 158 N. Y., 34 Westerfield vs. Levis, 43 La. An., 63; Niosi vs. Empire Steam
Laundry, 117 Cal., 257.)
The act of defendant's driver in leaving the horses in the manner proved was not unreasonable or imprudent.
Acts the performance of which has not proved destructive or injurious and which have, therefore, been
acquiesced in by society for so long a time that they have ripened into custom, can not be held to be
themselves unreasonable or imprudent. Indeed the very reason why they have been permitted by society is
that they beneficial rather than prejudicial.itc-alf Accidents sometimes happen and injuries result from the most
ordinary acts of life. But such are not their natural or customary results. To hold that, because such an act once
resulted in accident or injury, the actor is necessarily negligent, is to go far. The fact that the doctrine of res
ipsa loquitur is sometimes successfully invoked in such a case, does not in any sense militate against the
reasoning presented. That maxim at most only creates a prima facie case, and that only in the absence of
proof of the circumstances under which the act complained of was performed. It is something invoked in favor
of the plaintiff before defendant's case showing the conditions and circumstances under which the injury
occurred, the creative reason for the doctrine of res ipsa loquitur disappears. This is demonstrated by the case
of Inland and Seaboard Costing Co. vs. Tolson (139 U.S., 551), where the court said (p. 554):
. . . The whole effect of the instruction in question, as applied to the case before the jury, was that if the
steamboat, on a calm day and in smooth water, was thrown with such force against a wharf properly
built, as to tear up some of the planks of the flooring, this would be prima facie evidence of negligence
on the part of the defendant's agent in making the landing, unless upon the whole evidence in the case
this prima facie evidence was rebutted. As such damage to a wharf is not ordinarily done by a
steamboat under control of her officers and carefully managed by them, evidence that such damage
was done in this case was prima facie, and, if unexplained, sufficient evidence of negligence on their
part, and the jury might properly be so instructed.
There was presented in this case, and by the plaintiffs themselves, not only the fact of the runway and the
accident resulting therefrom, but also the conditions under which the runaway occurred. Those conditions
showing of themselves that the defendant's cochero was not negligent in the management of the horse,
the prima facie case in plaintiffs' favor, if any, was destroyed as soon as made.
It is a matter of common knowledge as well as proof that it is the universal practice of merchants to deliver
merchandise of the kind of that being delivered at the time of the injury, in the manner in which that was then
being delivered; and that it is the universal practice to leave the horses in the manner in which they were left at
the time of the accident. This is the custom in all cities. It has not been productive of accidents or injuries. The
public, finding itself unprejudiced by such practice, has acquiesced for years without objection. Ought the
public now, through the courts, without prior objection or notice, to be permitted to reverse the practice of
decades and thereby make culpable and guilty one who had every reason and assurance to believe that he
was acting under the sanction of the strongest of all civil forces, the custom of a people? We think not.
The judgement is reversed, without special finding as to costs. So ordered.
Arellano, C. J., Mapa, Johnson, Carson and Trent, JJ., concur.

Separate Opinions
TORRES, J., dissenting:
I am of the opinion that the judgment should be affirmed.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-55960 November 24, 1988
YAO KEE, SZE SOOK WAH, SZE LAI CHO, and SY CHUN YEN, petitioners,
vs.
AIDA SY-GONZALES, MANUEL SY, TERESITA SY-BERNABE, RODOLFO SY, and HONORABLE COURT
OF APPEALS, respondents.
Montesa, Albon, & Associates for petitioners.
De Lapa, Salonga, Fulgencio & De Lunas for respondents.

CORTES, J.:
Sy Kiat, a Chinese national. died on January 17, 1977 in Caloocan City where he was then residing, leaving
behind real and personal properties here in the Philippines worth P300,000.00 more or less.

Thereafter, Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy filed a petition for the grant of
letters of administration docketed as Special Proceedings Case No. C-699 of the then Court of First Instance of
Rizal Branch XXXIII, Caloocan City. In said petition they alleged among others that (a) they are the children of
the deceased with Asuncion Gillego; (b) to their knowledge Sy Mat died intestate; (c) they do not recognize Sy
Kiat's marriage to Yao Kee nor the filiation of her children to him; and, (d) they nominate Aida Sy-Gonzales for
appointment as administratrix of the intestate estate of the deceased [Record on Appeal, pp. 4-9; Rollo, p.
107.]
The petition was opposed by Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy Yun Chen who alleged that: (a)
Yao Kee is the lawful wife of Sy Kiat whom he married on January 19, 1931 in China; (b) the other oppositors
are the legitimate children of the deceased with Yao Kee; and, (c) Sze Sook Wah is the eldest among them
and is competent, willing and desirous to become the administratrix of the estate of Sy Kiat [Record on Appeal,
pp. 12-13; Rollo, p. 107.] After hearing, the probate court, finding among others that:
(1) Sy Kiat was legally married to Yao Kee [CFI decision, pp. 12-27; Rollo, pp. 49-64;]
(2) Sze Sook Wah, Sze Lai Cho and Sze Chun Yen are the legitimate children of Yao Kee with
Sy Mat [CFI decision, pp. 28-31; Rollo. pp. 65-68;] and,
(3) Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy are the acknowledged
illegitimate offsprings of Sy Kiat with Asuncion Gillego [CFI decision, pp. 27-28; Rollo, pp. 6465.]
held if favor of the oppositors (petitioners herein) and appointed Sze Sook Wah as the administratrix of the
intestate estate of the deceased [CFI decision, pp. 68-69; Rollo, pp. 105-106.]
On appeal the Court of Appeals rendered a decision modifying that of the probate court, the dispositive portion
of which reads:
IN VIEW OF THE FOREGOING, the decision of the lower Court is hereby MODIFIED and SET
ASIDE and a new judgment rendered as follows:
(1) Declaring petitioners Aida Sy-Gonzales, Manuel Sy, Teresita Sy- Bernabe and Rodolfo Sy
acknowledged natural children of the deceased Sy Kiat with Asuncion Gillego, an unmarried
woman with whom he lived as husband and wife without benefit of marriage for many years:
(2) Declaring oppositors Sze Sook Wah, Sze Lai Chu and Sze Chun Yen, the acknowledged
natural children of the deceased Sy Kiat with his Chinese wife Yao Kee, also known as Yui Yip,
since the legality of the alleged marriage of Sy Mat to Yao Kee in China had not been proven to
be valid to the laws of the Chinese People's Republic of China (sic);
(3) Declaring the deed of sale executed by Sy Kiat on December 7, 1976 in favor of Tomas Sy
(Exhibit "G-1", English translation of Exhibit "G") of the Avenue Tractor and Diesel Parts Supply
to be valid and accordingly, said property should be excluded from the estate of the deceased
Sy Kiat; and
(4) Affirming the appointment by the lower court of Sze Sook Wah as judicial administratrix of
the estate of the deceased. [CA decision, pp. 11-12; Rollo, pp. 36- 37.]
From said decision both parties moved for partial reconsideration, which was however denied by respondent
court. They thus interposed their respective appeals to this Court.

Private respondents filed a petition with this Court docketed as G.R. No. 56045 entitled "Aida Sy-Gonzales,
Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy v. Court of Appeals, Yao Kee, Sze Sook Wah, Sze Lai Cho
and Sy Chun Yen" questioning paragraphs (3) and (4) of the dispositive portion of the Court of Appeals'
decision. The Supreme Court however resolved to deny the petition and the motion for reconsideration. Thus
on March 8, 1982 entry of judgment was made in G.R. No. 56045. **
The instant petition, on the other hand, questions paragraphs (1) and (2) of the dispositive portion of the
decision of the Court of Appeals. This petition was initially denied by the Supreme Court on June 22, 1981.
Upon motion of the petitioners the Court in a resolution dated September 16, 1981 reconsidered the denial and
decided to give due course to this petition. Herein petitioners assign the following as errors:
I. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN DECLARING THE
MARRIAGE OF SY KIAT TO YAO YEE AS NOT HAVE (sic) BEEN PROVEN VALID IN
ACCORDANCE WITH LAWS OF THE PEOPLE'S REPUBLIC OF CHINA.
II. RESPONDENT COURT OF APPEALS GRAVELY ERRED IN DECLARING AIDA SYGONZALES, MANUEL SY, TERESITA SY-BERNABE AND RODOLFO SY AS NATURAL
CHILDREN OF SY KIAT WITH ASUNCION GILLEGO. [Petition, p. 2; Rollo, p. 6.]
I. Petitioners argue that the marriage of Sy Kiat to Yao Kee in accordance with Chinese law and custom was
conclusively proven. To buttress this argument they rely on the following testimonial and documentary
evidence.
First, the testimony of Yao Kee summarized by the trial court as follows:
Yao Kee testified that she was married to Sy Kiat on January 19, 1931 in Fookien, China; that
she does not have a marriage certificate because the practice during that time was for elders to
agree upon the betrothal of their children, and in her case, her elder brother was the one who
contracted or entered into [an] agreement with the parents of her husband; that the agreement
was that she and Sy Mat would be married, the wedding date was set, and invitations were sent
out; that the said agreement was complied with; that she has five children with Sy Kiat, but two
of them died; that those who are alive are Sze Sook Wah, Sze Lai Cho, and Sze Chun Yen, the
eldest being Sze Sook Wah who is already 38 years old; that Sze Sook Wah was born on
November 7, 1939; that she and her husband, Sy Mat, have been living in FooKien, China
before he went to the Philippines on several occasions; that the practice during the time of her
marriage was a written document [is exchanged] just between the parents of the bride and the
parents of the groom, or any elder for that matter; that in China, the custom is that there is a gobetween, a sort of marriage broker who is known to both parties who would talk to the parents of
the bride-to-be; that if the parents of the bride-to-be agree to have the groom-to-be their son inlaw, then they agree on a date as an engagement day; that on engagement day, the parents of
the groom would bring some pieces of jewelry to the parents of the bride-to-be, and then one
month after that, a date would be set for the wedding, which in her case, the wedding date to Sy
Kiat was set on January 19, 1931; that during the wedding the bridegroom brings with him a
couch (sic) where the bride would ride and on that same day, the parents of the bride would give
the dowry for her daughter and then the document would be signed by the parties but there is
no solemnizing officer as is known in the Philippines; that during the wedding day, the document
is signed only by the parents of the bridegroom as well as by the parents of the bride; that the
parties themselves do not sign the document; that the bride would then be placed in a carriage
where she would be brought to the town of the bridegroom and before departure the bride would
be covered with a sort of a veil; that upon reaching the town of the bridegroom, the bridegroom
takes away the veil; that during her wedding to Sy Kiat (according to said Chinese custom),
there were many persons present; that after Sy Kiat opened the door of the carriage, two old

ladies helped her go down the carriage and brought her inside the house of Sy Mat; that during
her wedding, Sy Chick, the eldest brother of Sy Kiat, signed the document with her mother; that
as to the whereabouts of that document, she and Sy Mat were married for 46 years already and
the document was left in China and she doubt if that document can still be found now; that it
was left in the possession of Sy Kiat's family; that right now, she does not know the
whereabouts of that document because of the lapse of many years and because they left it in a
certain place and it was already eaten by the termites; that after her wedding with Sy Kiat, they
lived immediately together as husband and wife, and from then on, they lived together; that Sy
Kiat went to the Philippines sometime in March or April in the same year they were married; that
she went to the Philippines in 1970, and then came back to China; that again she went back to
the Philippines and lived with Sy Mat as husband and wife; that she begot her children with Sy
Kiat during the several trips by Sy Kiat made back to China. [CFI decision, pp. 13-15; Rollo, pp.
50-52.]
Second, the testimony of Gan Ching, a younger brother of Yao Kee who stated that he was among the many
people who attended the wedding of his sister with Sy Kiat and that no marriage certificate is issued by the
Chinese government, a document signed by the parents or elders of the parties being sufficient [CFI decision,
pp. 15-16; Rollo, pp.
52-53.]
Third, the statements made by Asuncion Gillego when she testified before the trial court to the effect that (a) Sy
Mat was married to Yao Kee according to Chinese custom; and, (b) Sy Kiat's admission to her that he has a
Chinese wife whom he married according to Chinese custom [CFI decision, p. 17; Rollo, p. 54.]
Fourth, Sy Kiat's Master Card of Registered Alien issued in Caloocan City on October 3, 1972 where the
following entries are found: "Marital statusMarried"; "If married give name of spousesYao Kee"; "AddressChina; "Date of marriage1931"; and "Place of marriageChina" [Exhibit "SS-1".]
Fifth, Sy Kiat's Alien Certificate of Registration issued in Manila on January 12, 1968 where the following
entries are likewise found: "Civil statusMarried"; and, 'If married, state name and address of spouseYao
Kee Chingkang, China" [Exhibit "4".]
And lastly, the certification issued in Manila on October 28, 1977 by the Embassy of the People's Republic of
China to the effect that "according to the information available at the Embassy Mr. Sy Kiat a Chinese national
and Mrs. Yao Kee alias Yui Yip also Chinese were married on January 19, 1931 in Fukien, the People's
Republic of China" [Exhibit "5".]
These evidence may very well prove the fact of marriage between Yao Kee and Sy Kiat. However, the same do
not suffice to establish the validity of said marriage in accordance with Chinese law or custom.
Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social
rule, legally binding and obligatory" [In the Matter of the Petition for Authority to Continue Use of the Firm
Name "Ozaeta, Romulo, de Leon, Mabanta and Reyes", July 30, 1979, SCRA 3, 12 citing JBL Reyes & RC
Puno, Outline of Phil. Civil Law, Fourth Ed., Vol. 1, p. 7.] The law requires that "a custom must be proved as a
fact, according to the rules of evidence" [Article 12, Civil Code.] On this score the Court had occasion to state
that "a local custom as a source of right can not be considered by a court of justice unless such custom is
properly established by competent evidence like any other fact" [Patriarca v. Orate, 7 Phil. 390, 395 (1907).]
The same evidence, if not one of a higher degree, should be required of a foreign custom.
The law on foreign marriages is provided by Article 71 of the Civil Code which states that:

Art. 71. All marriages performed outside the Philippines in accordance with the laws in force in
the country where they were performed and valid there as such, shall also be valid in this
country, except bigamous, Polygamous, or incestuous marriages, as determined by Philippine
law. (Emphasis supplied.) ***
Construing this provision of law the Court has held that to establish a valid foreign marriage two things must be
proven, namely: (1) the existence of the foreign law as a question of fact; and (2) the alleged foreign marriage
by convincing evidence [Adong v. Cheong Seng Gee, 43 Phil. 43, 49 (1922).]
In proving a foreign law the procedure is provided in the Rules of Court. With respect to an unwritten foreign
law, Rule 130 section 45 states that:
SEC. 45. Unwritten law.The oral testimony of witnesses, skilled therein, is admissible as
evidence of the unwritten law of a foreign country, as are also printed and published books of
reports of decisions of the courts of the foreign country, if proved to be commonly admitted in
such courts.
Proof of a written foreign law, on the other hand, is provided for under Rule 132 section 25, thus:
SEC. 25. Proof of public or official record.An official record or an entry therein, when
admissible for any purpose, may be evidenced by an official publication thereof or by a copy
attested by the officer having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a certificate that such officer has
the custody. If the office in which the record is kept is in a foreign country, the certificate may be
made by a secretary of embassy or legation, consul general, consul, vice consul, or consular
agent or by any officer in the foreign service of the Philippines stationed in the foreign country in
which the record is kept and authenticated by the seal of his office.
The Court has interpreted section 25 to include competent evidence like the testimony of a witness to prove
the existence of a written foreign law [Collector of Internal Revenue v. Fisher 110 Phil. 686, 700-701 (1961)
citing Willamette Iron and Steel Works v. Muzzal, 61 Phil. 471 (1935).]
In the case at bar petitioners did not present any competent evidence relative to the law and custom of China
on marriage. The testimonies of Yao and Gan Ching cannot be considered as proof of China's law or custom
on marriage not only because they are
self-serving evidence, but more importantly, there is no showing that they are competent to testify on the
subject matter. For failure to prove the foreign law or custom, and consequently, the validity of the marriage in
accordance with said law or custom, the marriage between Yao Kee and Sy Kiat cannot be recognized in this
jurisdiction.
Petitioners contend that contrary to the Court of Appeals' ruling they are not duty bound to prove the Chinese
law on marriage as judicial notice thereof had been taken by this Court in the case of Sy Joc Lieng v. Sy
Quia [16 Phil. 137 (1910).]
This contention is erroneous. Well-established in this jurisdiction is the principle that Philippine courts cannot
take judicial notice of foreign laws. They must be alleged and proved as any other fact [Yam Ka Lim v. Collector
of Customs, 30 Phil. 46, 48 (1915); Fluemer v. Hix, 54 Phil. 610 (1930).]
Moreover a reading of said case would show that the party alleging the foreign marriage presented a witness,
one Li Ung Bieng, to prove that matrimonial letters mutually exchanged by the contracting parties constitute the
essential requisite for a marriage to be considered duly solemnized in China. Based on his testimony, which as
found by the Court is uniformly corroborated by authors on the subject of Chinese marriage, what was left to be

decided was the issue of whether or not the fact of marriage in accordance with Chinese law was duly proven
[Sy Joc Lieng v. Sy Quia, supra., at p. 160.]
Further, even assuming for the sake of argument that the Court has indeed taken judicial notice of the law of
China on marriage in the aforecited case, petitioners however have not shown any proof that the Chinese law
or custom obtaining at the time the Sy Joc Lieng marriage was celebrated in 1847 was still the law when the
alleged marriage of Sy Kiat to Yao Kee took place in 1931 or eighty-four (84) years later.
Petitioners moreover cite the case of U.S. v. Memoracion [34 Phil. 633 (1916)] as being applicable to the
instant case. They aver that the judicial pronouncement in the Memoracion case, that the testimony of one of
the contracting parties is competent evidence to show the fact of marriage, holds true in this case.
The Memoracion case however is not applicable to the case at bar as said case did not concern a foreign
marriage and the issue posed was whether or not the oral testimony of a spouse is competent evidence to
prove the fact of marriage in a complaint for adultery.
Accordingly, in the absence of proof of the Chinese law on marriage, it should be presumed that it is the same
as ours *** [Wong Woo Yiu v. Vivo, G.R. No. L-21076, March 31, 1965, 13 SCRA 552, 555.] Since Yao Kee
admitted in her testimony that there was no solemnizing officer as is known here in the Philippines [See Article
56, Civil Code] when her alleged marriage to Sy Mat was celebrated [CFI decision, p. 14; Rollo, p. 51], it
therefore follows that her marriage to Sy Kiat, even if true, cannot be recognized in this jurisdiction [Wong Woo
Yiu v. Vivo, supra., pp. 555-556.]
II. The second issue raised by petitioners concerns the status of private respondents.
Respondent court found the following evidence of petitioners' filiation:
(1) Sy Kiat's Master Card of Registered Alien where the following are entered: "Children if any:
give number of childrenFour"; and, "NameAll living in China" [Exhibit "SS-1";]
(2) the testimony of their mother Yao Kee who stated that she had five children with Sy Kiat,
only three of whom are alive namely, Sze Sook Wah, Sze Lai Chu and Sze Chin Yan [TSN,
December 12, 1977, pp. 9-11;] and,
(3) an affidavit executed on March 22,1961 by Sy Kiat for presentation to the Local Civil
Registrar of Manila to support Sze Sook Wah's application for a marriage license, wherein Sy
Kiat expressly stated that she is his daughter [Exhibit "3".]
Likewise on the record is the testimony of Asuncion Gillego that Sy Kiat told her he has three daughters with
his Chinese wife, two of whomSook Wah and Sze Kai Choshe knows, and one adopted son [TSN,
December 6,1977, pp. 87-88.]
However, as petitioners failed to establish the marriage of Yao Kee with Sy Mat according to the laws of China,
they cannot be accorded the status of legitimate children but only that of acknowledged natural children.
Petitioners are natural children, it appearing that at the time of their conception Yao Kee and Sy Kiat were not
disqualified by any impediment to marry one another [See Art. 269, Civil Code.] And they are acknowledged
children of the deceased because of Sy Kiat's recognition of Sze Sook Wah [Exhibit "3"] and its extension to
Sze Lai Cho and Sy Chun Yen who are her sisters of the full blood [See Art. 271, Civil Code.]
Private respondents on the other hand are also the deceased's acknowledged natural children with Asuncion
Gillego, a Filipina with whom he lived for twenty-five (25) years without the benefit of marriage. They have in
their favor their father's acknowledgment, evidenced by a compromise agreement entered into by and between

their parents and approved by the Court of First Instance on February 12, 1974 wherein Sy Kiat not only
acknowleged them as his children by Asuncion Gillego but likewise made provisions for their support and
future inheritance, thus:
xxx xxx xxx
2. The parties also acknowledge that they are common-law husband and wife and that out of
such relationship, which they have likewise decided to definitely and finally terminate effective
immediately, they begot five children, namely: Aida Sy, born on May 30, 1950; Manuel Sy, born
on July 1, 1953; Teresita Sy, born on January 28, 1955; Ricardo Sy now deceased, born on
December 14, 1956; and Rodolfo Sy, born on May 7, 1958.
3. With respect to the AVENUE TRACTOR AND DIESEL PARTS SUPPLY ... , the parties
mutually agree and covenant that
(a) The stocks and merchandize and the furniture and equipments ..., shall be
divided into two equal shares between, and distributed to, Sy Kiat who shall own
one-half of the total and the other half to Asuncion Gillego who shall transfer the
same to their children, namely, Aida Sy, Manuel Sy, Teresita Sy, and Rodolfo Sy.
(b) the business name and premises ... shall be retained by Sy Kiat. However, it
shall be his obligation to give to the aforenamed children an amount of One
Thousand Pesos ( Pl,000.00 ) monthly out of the rental of the two doors of the
same building now occupied by Everett Construction.
xxx xxx xxx
(5) With respect to the acquisition, during the existence of the
common-law husband-and-wife relationship between the parties, of the real estates and
properties registered and/or appearing in the name of Asuncion Gillego ... , the parties mutually
agree and covenant that the said real estates and properties shall be transferred in equal
shares to their children, namely, Aida Sy, Manuel Sy, Teresita Sy, and Rodolfo Sy, but to be
administered by Asuncion Gillego during her lifetime ... [Exhibit "D".] (Emphasis supplied.)
xxx xxx xxx
This compromise agreement constitutes a statement before a court of record by which a child may be
voluntarily acknowledged [See Art. 278, Civil Code.]
Petitioners further argue that the questions on the validity of Sy Mat's marriage to Yao Kee and the paternity
and filiation of the parties should have been ventilated in the Juvenile and Domestic Relations Court.
Specifically, petitioners rely on the following provision of Republic Act No. 5502, entitled "An Act Revising Rep.
Act No. 3278, otherwise known as the Charter of the City of Caloocan', with regard to the Juvenile and
Domestic Relations Court:
SEC. 91-A. Creation and Jurisdiction of the Court.
xxx xxx xxx
The provisions of the Judiciary Act to the contrary notwithstanding, the court shall have
exclusive original jurisdiction to hear and decide the following cases:

xxx xxx xxx

(2) Cases involving custody, guardianship, adoption, revocation of adoption, paternity and
acknowledgment;
(3) Annulment of marriages, relief from marital obligations, legal separation of spouses, and
actions for support;
(4) Proceedings brought under the provisions of title six and title seven, chapters one to three of
the civil code;
xxx xxx xxx
and the ruling in the case of Bartolome v. Bartolome [G.R. No. L-23661, 21 SCRA 1324] reiterated in
Divinagracia v. Rovira [G.R. No. L-42615, 72 SCRA 307.]
With the enactment of Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization Act of
1980, the Juvenile and Domestic Relations Courts were abolished. Their functions and jurisdiction are now
vested with the Regional Trial Courts [See Section 19 (7), B.P. Blg. 129 and Divinagracia v. Belosillo, G.R. No.
L-47407, August 12, 1986, 143 SCRA 356, 360] hence it is no longer necessary to pass upon the issue of
jurisdiction raised by petitioners.
Moreover, even without the exactment of Batas Pambansa Blg. 129 we find in Rep. Act No. 5502 sec. 91-A last
paragraph that:
xxx xxx xxx
If any question involving any of the above matters should arise as an incident in any case
pending in the ordinary court, said incident shall be determined in the main case.
xxx xxx xxx
As held in the case of Divinagracia v. Rovira [G.R. No. L42615. August 10, 1976, 72 SCRA 307]:
xxx xxx xxx
It is true that under the aforequoted section 1 of Republic Act No. 4834 **** a case involving
paternity and acknowledgment may be ventilated as an incident in the intestate or testate
proceeding (See Baluyot vs. Ines Luciano, L-42215, July 13, 1976). But that legal provision
presupposes that such an administration proceeding is pending or existing and has not been
terminated. [at pp. 313-314.] (Emphasis supplied.)
xxx xxx xxx
The reason for ths rule is not only "to obviate the rendition of conflicting rulings on the same issue by the Court
of First Instance and the Juvenile and Domestic Relations Court" [Vda. de Baluyut v. Luciano, G.R. No. L42215, July 13, 1976, 72 SCRA 52, 63] but more importantly to prevent multiplicity of suits. Accordingly, this
Court finds no reversible error committed by respondent court.
WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED.
SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
July 30, 1979
PETITION FOR AUTHORITY TO CONTINUE USE OF THE FIRM NAME "SYCIP, SALAZAR, FELICIANO,
HERNANDEZ & CASTILLO." LUCIANO E. SALAZAR, FLORENTINO P. FELICIANO, BENILDO G.
HERNANDEZ. GREGORIO R. CASTILLO. ALBERTO P. SAN JUAN, JUAN C. REYES. JR., ANDRES G.
GATMAITAN, JUSTINO H. CACANINDIN, NOEL A. LAMAN, ETHELWOLDO E. FERNANDEZ, ANGELITO
C. IMPERIO, EDUARDO R. CENIZA, TRISTAN A. CATINDIG, ANCHETA K. TAN, and ALICE V.
PESIGAN,petitioners.
IN THE MATTER OF THE PETITION FOR AUTHORITY TO CONTINUE USE OF THE FIRM NAME
"OZAETA, ROMULO, DE LEON, MABANTA & REYES." RICARDO J. ROMULO, BENJAMIN M. DE LEON,
ROMAN MABANTA, JR., JOSE MA, REYES, JESUS S. J. SAYOC, EDUARDO DE LOS ANGELES, and
JOSE F. BUENAVENTURA, petitioners.
RESOLUTION
MELENCIO-HERRERA, J.:+.wph!1
Two separate Petitions were filed before this Court 1) by the surviving partners of Atty. Alexander Sycip, who
died on May 5, 1975, and 2) by the surviving partners of Atty. Herminio Ozaeta, who died on February 14,
1976, praying that they be allowed to continue using, in the names of their firms, the names of partners who
had passed away. In the Court's Resolution of September 2, 1976, both Petitions were ordered consolidated.
Petitioners base their petitions on the following arguments:
1. Under the law, a partnership is not prohibited from continuing its business under a firm name which includes
the name of a deceased partner; in fact, Article 1840 of the Civil Code explicitly sanctions the practice when it
provides in the last paragraph that: t.hqw
The use by the person or partnership continuing the business of the partnership name, or the
name of a deceased partner as part thereof, shall not of itself make the individual property of the
deceased partner liable for any debts contracted by such person or partnership. 1
2. In regulating other professions, such as accountancy and engineering, the legislature has authorized the
adoption of firm names without any restriction as to the use, in such firm name, of the name of a deceased
partner; 2 the legislative authorization given to those engaged in the practice of accountancy a profession
requiring the same degree of trust and confidence in respect of clients as that implicit in the relationship of
attorney and client to acquire and use a trade name, strongly indicates that there is no fundamental policy
that is offended by the continued use by a firm of professionals of a firm name which includes the name of a
deceased partner, at least where such firm name has acquired the characteristics of a "trade name." 3
3. The Canons of Professional Ethics are not transgressed by the continued use of the name of a deceased
partner in the firm name of a law partnership because Canon 33 of the Canons of Professional Ethics adopted
by the American Bar Association declares that: t.hqw

... The continued use of the name of a deceased or former partner when permissible by local
custom, is not unethical but care should be taken that no imposition or deception is practiced
through this use. ... 4
4. There is no possibility of imposition or deception because the deaths of their respective deceased partners
were well-publicized in all newspapers of general circulation for several days; the stationeries now being used
by them carry new letterheads indicating the years when their respective deceased partners were connected
with the firm; petitioners will notify all leading national and international law directories of the fact of their
respective deceased partners' deaths. 5
5. No local custom prohibits the continued use of a deceased partner's name in a professional firm's
name; 6 there is no custom or usage in the Philippines, or at least in the Greater Manila Area, which recognizes
that the name of a law firm necessarily Identifies the individual members of the firm. 7
6. The continued use of a deceased partner's name in the firm name of law partnerships has been consistently
allowed by U.S. Courts and is an accepted practice in the legal profession of most countries in the world. 8
The question involved in these Petitions first came under consideration by this Court in 1953 when a law firm in
Cebu (the Deen case) continued its practice of including in its firm name that of a deceased partner, C.D.
Johnston. The matter was resolved with this Court advising the firm to desist from including in their firm
designation the name of C. D. Johnston, who has long been dead."
The same issue was raised before this Court in 1958 as an incident in G. R. No. L-11964, entitled Register of
Deeds of Manila vs. China Banking Corporation. The law firm of Perkins & Ponce Enrile moved to intervene
asamicus curiae. Before acting thereon, the Court, in a Resolution of April 15, 1957, stated that it "would like to
be informed why the name of Perkins is still being used although Atty. E. A. Perkins is already dead." In a
Manifestation dated May 21, 1957, the law firm of Perkins and Ponce Enrile, raising substantially the same
arguments as those now being raised by petitioners, prayed that the continued use of the firm name "Perkins &
Ponce Enrile" be held proper.
On June 16, 1958, this Court resolved: t.hqw
After carefully considering the reasons given by Attorneys Alfonso Ponce Enrile and Associates
for their continued use of the name of the deceased E. G. Perkins, the Court found no reason to
depart from the policy it adopted in June 1953 when it required Attorneys Alfred P. Deen and
Eddy A. Deen of Cebu City to desist from including in their firm designation, the name of C. D.
Johnston, deceased. The Court believes that, in view of the personal and confidential nature of
the relations between attorney and client, and the high standards demanded in the canons of
professional ethics, no practice should be allowed which even in a remote degree could give
rise to the possibility of deception. Said attorneys are accordingly advised to drop the name
"PERKINS" from their firm name.
Petitioners herein now seek a re-examination of the policy thus far enunciated by the Court.
The Court finds no sufficient reason to depart from the rulings thus laid down.
A. Inasmuch as "Sycip, Salazar, Feliciano, Hernandez and Castillo" and "Ozaeta, Romulo, De Leon, Mabanta
and Reyes" are partnerships, the use in their partnership names of the names of deceased partners will run
counter to Article 1815 of the Civil Code which provides: t.hqw
Art. 1815. Every partnership shall operate under a firm name, which may or may not include the
name of one or more of the partners.

Those who, not being members of the partnership, include their names in the firm name, shall
be subject to the liability, of a partner.
It is clearly tacit in the above provision that names in a firm name of a partnership must either be those of living
partners and. in the case of non-partners, should be living persons who can be subjected to liability. In fact,
Article 1825 of the Civil Code prohibits a third person from including his name in the firm name under pain of
assuming the liability of a partner. The heirs of a deceased partner in a law firm cannot be held liable as the old
members to the creditors of a firm particularly where they are non-lawyers. Thus, Canon 34 of the Canons of
Professional Ethics "prohibits an agreement for the payment to the widow and heirs of a deceased lawyer of a
percentage, either gross or net, of the fees received from the future business of the deceased lawyer's clients,
both because the recipients of such division are not lawyers and because such payments will not represent
service or responsibility on the part of the recipient. " Accordingly, neither the widow nor the heirs can be held
liable for transactions entered into after the death of their lawyer-predecessor. There being no benefits
accruing, there ran be no corresponding liability.
Prescinding the law, there could be practical objections to allowing the use by law firms of the names of
deceased partners. The public relations value of the use of an old firm name can tend to create undue
advantages and disadvantages in the practice of the profession. An able lawyer without connections will have
to make a name for himself starting from scratch. Another able lawyer, who can join an old firm, can initially
ride on that old firm's reputation established by deceased partners.
B. In regards to the last paragraph of Article 1840 of the Civil Code cited by petitioners, supra, the first factor to
consider is that it is within Chapter 3 of Title IX of the Code entitled "Dissolution and Winding Up." The Article
primarily deals with the exemption from liability in cases of a dissolved partnership, of the individual property of
the deceased partner for debts contracted by the person or partnership which continues the business using the
partnership name or the name of the deceased partner as part thereof. What the law contemplates therein is a
hold-over situation preparatory to formal reorganization.
Secondly, Article 1840 treats more of a commercial partnership with a good will to protect rather than of
aprofessional partnership, with no saleable good will but whose reputation depends on the personal
qualifications of its individual members. Thus, it has been held that a saleable goodwill can exist only in a
commercial partnership and cannot arise in a professional partnership consisting of lawyers. 9t.hqw
As a general rule, upon the dissolution of a commercial partnership the succeeding partners or
parties have the right to carry on the business under the old name, in the absence of a
stipulation forbidding it, (s)ince the name of a commercial partnership is a partnership asset
inseparable from the good will of the firm. ... (60 Am Jur 2d, s 204, p. 115) (Emphasis supplied)
On the other hand, t.hqw
... a professional partnership the reputation of which depends or; the individual skill of the
members, such as partnerships of attorneys or physicians, has no good win to be distributed as
a firm asset on its dissolution, however intrinsically valuable such skill and reputation may be,
especially where there is no provision in the partnership agreement relating to good will as an
asset. ... (ibid, s 203, p. 115) (Emphasis supplied)
C. A partnership for the practice of law cannot be likened to partnerships formed by other professionals or for
business. For one thing, the law on accountancy specifically allows the use of a trade name in connection with
the practice of accountancy. 10 t.hqw
A partnership for the practice of law is not a legal entity. It is a mere relationship or association
for a particular purpose. ... It is not a partnership formed for the purpose of carrying on trade or

business or of holding property." 11 Thus, it has been stated that "the use of a nom de plume,
assumed or trade name in law practice is improper. 12
The usual reason given for different standards of conduct being applicable to the practice of law
from those pertaining to business is that the law is a profession.
Dean Pound, in his recently published contribution to the Survey of the Legal Profession, (The
Lawyer from Antiquity to Modern Times, p. 5) defines a profession as "a group of men pursuing
a learned art as a common calling in the spirit of public service, no less a public service
because it may incidentally be a means of livelihood."
xxx xxx xxx
Primary characteristics which distinguish the legal profession from business are:
1. A duty of public service, of which the emolument is a byproduct, and in which one may attain
the highest eminence without making much money.
2. A relation as an "officer of court" to the administration of justice involving thorough sincerity,
integrity, and reliability.
3. A relation to clients in the highest degree fiduciary.
4. A relation to colleagues at the bar characterized by candor, fairness, and unwillingness to
resort to current business methods of advertising and encroachment on their practice, or dealing
directly with their clients. 13
"The right to practice law is not a natural or constitutional right but is in the nature of a privilege or
franchise. 14 It is limited to persons of good moral character with special qualifications duly ascertained and
certified. 15 The right does not only presuppose in its possessor integrity, legal standing and attainment, but
also the exercise of a special privilege, highly personal and partaking of the nature of a public trust." 16
D. Petitioners cited Canon 33 of the Canons of Professional Ethics of the American Bar Association" in support
of their petitions.
It is true that Canon 33 does not consider as unethical the continued use of the name of a deceased or former
partner in the firm name of a law partnership when such a practice is permissible by local custom but the
Canon warns that care should be taken that no imposition or deception is practiced through this use.
It must be conceded that in the Philippines, no local custom permits or allows the continued use of a deceased
or former partner's name in the firm names of law partnerships. Firm names, under our custom, Identify the
more active and/or more senior members or partners of the law firm. A glimpse at the history of the firms of
petitioners and of other law firms in this country would show how their firm names have evolved and changed
from time to time as the composition of the partnership changed. t.hqw
The continued use of a firm name after the death of one or more of the partners designated by it
is proper only where sustained by local custom and not where by custom this purports to
Identify the active members. ...
There would seem to be a question, under the working of the Canon, as to the propriety of
adding the name of a new partner and at the same time retaining that of a deceased

partner who was never a partner with the new one. (H.S. Drinker, op. cit., supra, at pp. 207208)
(Emphasis supplied).
The possibility of deception upon the public, real or consequential, where the name of a deceased partner
continues to be used cannot be ruled out. A person in search of legal counsel might be guided by the familiar
ring of a distinguished name appearing in a firm title.
E. Petitioners argue that U.S. Courts have consistently allowed the continued use of a deceased partner's
name in the firm name of law partnerships. But that is so because it is sanctioned by custom.
In the case of Mendelsohn v. Equitable Life Assurance Society (33 N.Y.S. 2d 733) which petitioners Salazar, et
al. quoted in their memorandum, the New York Supreme Court sustained the use of the firm name Alexander &
Green even if none of the present ten partners of the firm bears either name because the practice was
sanctioned by custom and did not offend any statutory provision or legislative policy and was adopted by
agreement of the parties. The Court stated therein: t.hqw
The practice sought to be proscribed has the sanction of custom and offends no statutory
provision or legislative policy. Canon 33 of the Canons of Professional Ethics of both the
American Bar Association and the New York State Bar Association provides in part as follows:
"The continued use of the name of a deceased or former partner, when permissible by local
custom is not unethical, but care should be taken that no imposition or deception is practiced
through this use." There is no question as to local custom. Many firms in the city use the names
of deceased members with the approval of other attorneys, bar associations and the courts. The
Appellate Division of the First Department has considered the matter and reached The
conclusion that such practice should not be prohibited. (Emphasis supplied)
xxx xxx xxx
Neither the Partnership Law nor the Penal Law prohibits the practice in question. The use of the
firm name herein is also sustainable by reason of agreement between the partners. 18
Not so in this jurisdiction where there is no local custom that sanctions the practice. Custom has been defined
as a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social rule, legally binding
and obligatory. 19 Courts take no judicial notice of custom. A custom must be proved as a fact, according to the
rules of evidence. 20 A local custom as a source of right cannot be considered by a court of justice unless such
custom is properly established by competent evidence like any other fact. 21 We find such proof of the
existence of a local custom, and of the elements requisite to constitute the same, wanting herein. Merely
because something is done as a matter of practice does not mean that Courts can rely on the same for
purposes of adjudication as a juridical custom. Juridical custom must be differentiated from social custom. The
former can supplement statutory law or be applied in the absence of such statute. Not so with the latter.
Moreover, judicial decisions applying or interpreting the laws form part of the legal system. 22 When the
Supreme Court in the Deen and Perkins cases issued its Resolutions directing lawyers to desist from including
the names of deceased partners in their firm designation, it laid down a legal rule against which no custom or
practice to the contrary, even if proven, can prevail. This is not to speak of our civil law which clearly ordains
that a partnership is dissolved by the death of any partner. 23 Custom which are contrary to law, public order or
public policy shall not be countenanced. 24
The practice of law is intimately and peculiarly related to the administration of justice and should not be
considered like an ordinary "money-making trade." t.hqw

... It is of the essence of a profession that it is practiced in a spirit of public service. A trade ...
aims primarily at personal gain; a profession at the exercise of powers beneficial to mankind. If,
as in the era of wide free opportunity, we think of free competitive self assertion as the highest
good, lawyer and grocer and farmer may seem to be freely competing with their fellows in their
calling in order each to acquire as much of the world's good as he may within the allowed him
by law. But the member of a profession does not regard himself as in competition with his
professional brethren. He is not bartering his services as is the artisan nor exchanging the
products of his skill and learning as the farmer sells wheat or corn. There should be no such
thing as a lawyers' or physicians' strike. The best service of the professional man is often
rendered for no equivalent or for a trifling equivalent and it is his pride to do what he does in a
way worthy of his profession even if done with no expectation of reward, This spirit of public
service in which the profession of law is and ought to be exercised is a prerequisite of sound
administration of justice according to law. The other two elements of a profession, namely,
organization and pursuit of a learned art have their justification in that they secure and maintain
that spirit. 25
In fine, petitioners' desire to preserve the Identity of their firms in the eyes of the public must bow to legal and
ethical impediment.
ACCORDINGLY, the petitions filed herein are denied and petitioners advised to drop the names "SYCIP" and
"OZAETA" from their respective firm names. Those names may, however, be included in the listing of
individuals who have been partners in their firms indicating the years during which they served as such.
SO ORDERED.
Teehankee, Concepcion, Jr., Santos, Fernandez, Guerrero and De Castro, JJ., concur
Fernando, C.J. and Abad Santos, J., took no part.

Separate Opinions

FERNANDO, C.J., concurring:

The petitions are denied, as there are only four votes for granting them, seven of the Justices being of the
contrary view, as explained in the plurality opinion of Justice Ameurfina Melencio-Herrera. It is out of
delicadeza that the undersigned did not participate in the disposition of these petitions, as the law office of
Sycip, Salazar, Feliciano, Hernandez and Castillo started with the partnership of Quisumbing, Sycip, and
Quisumbing, the senior partner, the late Ramon Quisumbing, being the father-in-law of the undersigned, and
the most junior partner then, Norberto J. Quisumbing, being his brother- in-law. For the record, the undersigned
wishes to invite the attention of all concerned, and not only of petitioners, to the last sentence of the opinion of
Justice Ameurfina Melencio-Herrera: 'Those names [Sycip and Ozaeta] may, however, be included in the listing
of individuals wtes
AQUINO, J., dissenting:
I dissent. The fourteen members of the law firm, Sycip, Salazar, Feliciano, Hernandez & Castillo, in their
petition of June 10, 1975, prayed for authority to continue the use of that firm name, notwithstanding the death

of Attorney Alexander Sycip on May 5, 1975 (May he rest in peace). He was the founder of the firm which was
originally known as the Sycip Law Office.
On the other hand, the seven surviving partners of the law firm, Ozaeta, Romulo, De Leon, Mabanta & Reyes,
in their petition of August 13, 1976, prayed that they be allowed to continue using the said firm name
notwithstanding the death of two partners, former Justice Roman Ozaeta and his son, Herminio, on May 1,
1972 and February 14, 1976, respectively.
They alleged that the said law firm was a continuation of the Ozaeta Law Office which was established in 1957
by Justice Ozaeta and his son and that, as to the said law firm, the name Ozaeta has acquired an institutional
and secondary connotation.
Article 1840 of the Civil Code, which speaks of the use by the partnership of the name of a deceased partner
as part of the partnership name, is cited to justify the petitions. Also invoked is the canon that the continued
use by a law firm of the name of a deceased partner, "when permissible by local custom, is not unethical" as
long as "no imposition or deception is practised through this use" (Canon 33 of the Canons of Legal Ethics).
I am of the opinion that the petition may be granted with the condition that it be indicated in the letterheads of
the two firms (as the case may be) that Alexander Sycip, former Justice Ozaeta and Herminio Ozaeta are dead
or the period when they served as partners should be stated therein.
Obviously, the purpose of the two firms in continuing the use of the names of their deceased founders is to
retain the clients who had customarily sought the legal services of Attorneys Sycip and Ozaeta and to benefit
from the goodwill attached to the names of those respected and esteemed law practitioners. That is a
legitimate motivation.
The retention of their names is not illegal per se. That practice was followed before the war by the law firm of
James Ross. Notwithstanding the death of Judge Ross the founder of the law firm of Ross, Lawrence, Selph
and Carrascoso, his name was retained in the firm name with an indication of the year when he died. No one
complained that the retention of the name of Judge Ross in the firm name was illegal or unethical.

# Separate Opinions
FERNANDO, C.J., concurring:
The petitions are denied, as there are only four votes for granting them, seven of the Justices being of the
contrary view, as explained in the plurality opinion of Justice Ameurfina Melencio-Herrera. It is out of
delicadeza that the undersigned did not participate in the disposition of these petitions, as the law office of
Sycip, Salazar, Feliciano, Hernandez and Castillo started with the partnership of Quisumbing, Sycip, and
Quisumbing, the senior partner, the late Ramon Quisumbing, being the father-in-law of the undersigned, and
the most junior partner then, Norberto J. Quisumbing, being his brother- in-law. For the record, the undersigned
wishes to invite the attention of all concerned, and not only of petitioners, to the last sentence of the opinion of
Justice Ameurfina Melencio-Herrera: 'Those names [Sycip and Ozaeta] may, however, be included in the listing
of individuals wtes
AQUINO, J., dissenting:
I dissent. The fourteen members of the law firm, Sycip, Salazar, Feliciano, Hernandez & Castillo, in their
petition of June 10, 1975, prayed for authority to continue the use of that firm name, notwithstanding the death

of Attorney Alexander Sycip on May 5, 1975 (May he rest in peace). He was the founder of the firm which was
originally known as the Sycip Law Office.
On the other hand, the seven surviving partners of the law firm, Ozaeta, Romulo, De Leon, Mabanta & Reyes,
in their petition of August 13, 1976, prayed that they be allowed to continue using the said firm name
notwithstanding the death of two partners, former Justice Roman Ozaeta and his son, Herminio, on May 1,
1972 and February 14, 1976, respectively.
They alleged that the said law firm was a continuation of the Ozaeta Law Office which was established in 1957
by Justice Ozaeta and his son and that, as to the said law firm, the name Ozaeta has acquired an institutional
and secondary connotation.
Article 1840 of the Civil Code, which speaks of the use by the partnership of the name of a deceased partner
as part of the partnership name, is cited to justify the petitions. Also invoked is the canon that the continued
use by a law firm of the name of a deceased partner, "when permissible by local custom, is not unethical" as
long as "no imposition or deception is practised through this use" (Canon 33 of the Canons of Legal Ethics).
I am of the opinion that the petition may be granted with the condition that it be indicated in the letterheads of
the two firms (as the case may be) that Alexander Sycip, former Justice Ozaeta and Herminio Ozaeta are dead
or the period when they served as partners should be stated therein.
Obviously, the purpose of the two firms in continuing the use of the names of their deceased founders is to
retain the clients who had customarily sought the legal services of Attorneys Sycip and Ozaeta and to benefit
from the goodwill attached to the names of those respected and esteemed law practitioners. That is a
legitimate motivation.
The retention of their names is not illegal per se. That practice was followed before the war by the law firm of
James Ross. Notwithstanding the death of Judge Ross the founder of the law firm of Ross, Lawrence, Selph
and Carrascoso, his name was retained in the firm name with an indication of the year when he died. No one
complained that the retention of the name of Judge Ross in the firm name was illegal or unethical.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 162155

August 28, 2007

COMMISSIONER OF INTERNAL REVENUE and ARTURO V. PARCERO in his official capacity as

Revenue District Officer of Revenue District No. 049 (Makati), Petitioners,
vs.
PRIMETOWN PROPERTY GROUP, INC., Respondent.
DECISION
CORONA, J.:
This petition for review on certiorari1 seeks to set aside the August 1, 2003 decision2 of the Court of Appeals
(CA) in CA-G.R. SP No. 64782 and its February 9, 2004 resolution denying reconsideration.3
On March 11, 1999, Gilbert Yap, vice chair of respondent Primetown Property Group, Inc., applied for the
refund or credit of income tax respondent paid in 1997. In Yap's letter to petitioner revenue district officer Arturo
V. Parcero of Revenue District No. 049 (Makati) of the Bureau of Internal Revenue (BIR),4 he explained that the
increase in the cost of labor and materials and difficulty in obtaining financing for projects and collecting

receivables caused the real estate industry to slowdown.5 As a consequence, while business was good during
the first quarter of 1997, respondent suffered losses amounting to P71,879,228 that year.6
According to Yap, because respondent suffered losses, it was not liable for income taxes.7 Nevertheless,
respondent paid its quarterly corporate income tax and remitted creditable withholding tax from real estate
sales to the BIR in the total amount of P26,318,398.32.8 Therefore, respondent was entitled to tax refund or tax
credit.9
On May 13, 1999, revenue officer Elizabeth Y. Santos required respondent to submit additional documents to
support its claim.10 Respondent complied but its claim was not acted upon. Thus, on April 14, 2000, it filed a
petition for review11 in the Court of Tax Appeals (CTA).
On December 15, 2000, the CTA dismissed the petition as it was filed beyond the two-year prescriptive period
for filing a judicial claim for tax refund or tax credit.12 It invoked Section 229 of the National Internal Revenue
Code (NIRC):
Sec. 229. Recovery of Taxes Erroneously or Illegally Collected. -- No suit or proceeding shall be maintained in
any court for the recovery of any national internal revenue tax hereafter alleged to have been erroneously or
illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any
sum alleged to have been excessively or in any manner wrongfully collected, until a claim for refund or credit
has been duly filed with the Commissioner; but such suit or proceeding may be maintained, whether or not
such tax, penalty, or sum has been paid under protest or duress.
In any case, no such suit or proceeding shall be filed after the expiration of two (2) years from the date
of payment of the tax or penalty regardless of any supervening cause that may arise after
payment:Provided, however, That the Commissioner may, even without a claim therefor, refund or credit any
tax, where on the face of the return upon which payment was made, such payment appears clearly to have
been erroneously paid. (emphasis supplied)
The CTA found that respondent filed its final adjusted return on April 14, 1998. Thus, its right to claim a refund
or credit commenced on that date.13
The tax court applied Article 13 of the Civil Code which states:
Art. 13. When the law speaks of years, months, days or nights, it shall be understood that years are of three
hundred sixty-five days each; months, of thirty days; days, of twenty-four hours, and nights from sunset to
sunrise.
If the months are designated by their name, they shall be computed by the number of days which they
respectively have.
In computing a period, the first day shall be excluded, and the last included. (emphasis supplied)
Thus, according to the CTA, the two-year prescriptive period under Section 229 of the NIRC for the filing of
judicial claims was equivalent to 730 days. Because the year 2000 was a leap year, respondent's petition,
which was filed 731 days14 after respondent filed its final adjusted return, was filed beyond the reglementary
period.15
Respondent moved for reconsideration but it was denied.16 Hence, it filed an appeal in the CA.17
On August 1, 2003, the CA reversed and set aside the decision of the CTA.18 It ruled that Article 13 of the Civil
Code did not distinguish between a regular year and a leap year. According to the CA:
The rule that a year has 365 days applies, notwithstanding the fact that a particular year is a leap year.19

In other words, even if the year 2000 was a leap year, the periods covered by April 15, 1998 to April 14, 1999
and April 15, 1999 to April 14, 2000 should still be counted as 365 days each or a total of 730 days. A statute
which is clear and explicit shall be neither interpreted nor construed.20
Petitioners moved for reconsideration but it was denied.21 Thus, this appeal.
Petitioners contend that tax refunds, being in the nature of an exemption, should be strictly construed against
claimants.22 Section 229 of the NIRC should be strictly applied against respondent inasmuch as it has been
consistently held that the prescriptive period (for the filing of tax refunds and tax credits) begins to run on the
day claimants file their final adjusted returns.23 Hence, the claim should have been filed on or before April 13,
2000 or within 730 days, reckoned from the time respondent filed its final adjusted return.
The conclusion of the CA that respondent filed its petition for review in the CTA within the two-year prescriptive
period provided in Section 229 of the NIRC is correct. Its basis, however, is not.
The rule is that the two-year prescriptive period is reckoned from the filing of the final adjusted return.24 But
how should the two-year prescriptive period be computed?
As already quoted, Article 13 of the Civil Code provides that when the law speaks of a year, it is understood to
be equivalent to 365 days. In National Marketing Corporation v. Tecson,25 we ruled that a year is equivalent to
365 days regardless of whether it is a regular year or a leap year.26
However, in 1987, EO27 292 or the Administrative Code of 1987 was enacted. Section 31, Chapter VIII, Book I
thereof provides:
Sec. 31. Legal Periods. "Year" shall be understood to be twelve calendar months; "month" of thirty
days, unless it refers to a specific calendar month in which case it shall be computed according to the number
of days the specific month contains; "day", to a day of twenty-four hours and; "night" from sunrise to sunset.
(emphasis supplied)
A calendar month is "a month designated in the calendar without regard to the number of days it may
contain."28It is the "period of time running from the beginning of a certain numbered day up to, but not
including, the corresponding numbered day of the next month, and if there is not a sufficient number of days in
the next month, then up to and including the last day of that month."29 To illustrate, one calendar month from
December 31, 2007 will be from January 1, 2008 to January 31, 2008; one calendar month from January 31,
2008 will be from February 1, 2008 until February 29, 2008.30
A law may be repealed expressly (by a categorical declaration that the law is revoked and abrogated by
another) or impliedly (when the provisions of a more recent law cannot be reasonably reconciled with the
previous one).31Section 27, Book VII (Final Provisions) of the Administrative Code of 1987 states:
Sec. 27. Repealing clause. All laws, decrees, orders, rules and regulation, or portions thereof, inconsistent
with this Code are hereby repealed or modified accordingly.
A repealing clause like Sec. 27 above is not an express repealing clause because it fails to identify or
designate the laws to be abolished.32 Thus, the provision above only impliedly repealed all laws inconsistent
with the Administrative Code of 1987.1avvphi1
Implied repeals, however, are not favored. An implied repeal must have been clearly and unmistakably
intended by the legislature. The test is whether the subsequent law encompasses entirely the subject matter of
the former law and they cannot be logically or reasonably reconciled.33
Both Article 13 of the Civil Code and Section 31, Chapter VIII, Book I of the Administrative Code of 1987 deal
with the same subject matter the computation of legal periods. Under the Civil Code, a year is equivalent to
365 days whether it be a regular year or a leap year. Under the Administrative Code of 1987, however, a year

is composed of 12 calendar months. Needless to state, under the Administrative Code of 1987, the number of
days is irrelevant.
There obviously exists a manifest incompatibility in the manner of computing legal periods under the Civil Code
and the Administrative Code of 1987. For this reason, we hold that Section 31, Chapter VIII, Book I of the
Administrative Code of 1987, being the more recent law, governs the computation of legal periods. Lex
posteriori derogat priori.
Applying Section 31, Chapter VIII, Book I of the Administrative Code of 1987 to this case, the two-year
prescriptive period (reckoned from the time respondent filed its final adjusted return34 on April 14, 1998)
consisted of 24 calendar months, computed as follows:
April 15, 1998 to
May 14, 1998
Year 1 1st
calendar
month
2nd

calendar
month

3rd

calendar
month

4th

calendar
month

5th

calendar
month

6th

calendar
month

7th

calendar
month

8th

calendar
month

9th

calendar
month

10th

calendar
month

11th

12th

May 15, 1998 to

June 14, 1998

June 15, 1998 to

July 14, 1998

July 15, 1998 to

August 14, 1998

August 15, 1998 to

September 14,
1998

September 15, to
1998

October 14, 1998

October 15, 1998 to

November 14,
1998

November 15, to
1998

December 14,
1998

December 15, to
1998

January 14, 1999

January 15, 1999 to

February 14, 1999

February 15, 1999 to

March 14, 1999

March 15, 1999 to

April 14, 1999

calendar
month
calendar
month

Year 2
13th

calendar
month

14th

calendar
month

15th

May 14, 1999

May 15, 1999 to

June 14, 1999

June 15, 1999 to

July 14, 1999

July 15, 1999 to

August 14, 1999

August 15, 1999 to

September 14,
1999

September 15, to
1999

October 14, 1999

October 15, 1999 to

November 14,
1999

November 15, to
1999

December 14,
1999

December 15, to
1999

January 14, 2000

January 15, 2000 to

February 14, 2000

February 15, 2000 to

March 14, 2000

March 15, 2000 to

April 14, 2000

calendar
month

16th

calendar
month

17th

calendar
month

18th

calendar
month

19th

calendar
month

20th

calendar
month

21st

calendar
month

22nd

April 15, 1999 to

calendar
month

23rd

calendar
month

24th

calendar
month

We therefore hold that respondent's petition (filed on April 14, 2000) was filed on the last day of the 24th
calendar month from the day respondent filed its final adjusted return. Hence, it was filed within the
reglementary period.
Accordingly, the petition is hereby DENIED. The case is REMANDED to the Court of Tax Appeals which is
ordered to expeditiously proceed to hear C.T.A. Case No. 6113 entitled Primetown Property Group, Inc. v.
Commissioner of Internal Revenue and Arturo V. Parcero.
No costs.
SO ORDERED.

RENATO C. CORONA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
Chairperson
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

ADOLFO S. AZCUNA
Associate Justice

CANCIO C. GARCIA
Associate Justice
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had
been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-22595

November 1, 1927

Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee,

vs.
ANDRE BRIMO, opponent-appellant.
Ross, Lawrence and Selph for appellant.
Camus and Delgado for appellee.

ROMUALDEZ, J.:
The partition of the estate left by the deceased Joseph G. Brimo is in question in this case.
The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers of the
deceased, opposed it. The court, however, approved it.
The errors which the oppositor-appellant assigns are:
(1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3) the denial of
the motion for reconsideration of the order approving the partition; (4) the approval of the purchase made by
the Pietro Lana of the deceased's business and the deed of transfer of said business; and (5) the declaration
that the Turkish laws are impertinent to this cause, and the failure not to postpone the approval of the scheme
of partition and the delivery of the deceased's business to Pietro Lanza until the receipt of the depositions
requested in reference to the Turkish laws.
The appellant's opposition is based on the fact that the partition in question puts into effect the provisions of
Joseph G. Brimo's will which are not in accordance with the laws of his Turkish nationality, for which reason
they are void as being in violation or article 10 of the Civil Code which, among other things, provides the
following:
Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to
the amount of the successional rights and the intrinsic validity of their provisions, shall be regulated by
the national law of the person whose succession is in question, whatever may be the nature of the
property or the country in which it may be situated.
But the fact is that the oppositor did not prove that said testimentary dispositions are not in accordance with the
Turkish laws, inasmuch as he did not present any evidence showing what the Turkish laws are on the matter,
and in the absence of evidence on such laws, they are presumed to be the same as those of the Philippines.
(Lim and Lim vs. Collector of Customs, 36 Phil., 472.)
It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it when he
desires to be given an opportunity to present evidence on this point; so much so that he assigns as an error of
the court in not having deferred the approval of the scheme of partition until the receipt of certain testimony
requested regarding the Turkish laws on the matter.

The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. It is
discretionary with the trial court, and, taking into consideration that the oppositor was granted ample
opportunity to introduce competent evidence, we find no abuse of discretion on the part of the court in this
particular. There is, therefore, no evidence in the record that the national law of the testator Joseph G. Brimo
was violated in the testamentary dispositions in question which, not being contrary to our laws in force, must be
complied with and executed. lawphil.net
Therefore, the approval of the scheme of partition in this respect was not erroneous.
In regard to the first assignment of error which deals with the exclusion of the herein appellant as a legatee,
inasmuch as he is one of the persons designated as such in will, it must be taken into consideration that such
exclusion is based on the last part of the second clause of the will, which says:
Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship having been
conferred upon me by conquest and not by free choice, nor by nationality and, on the other hand,
having resided for a considerable length of time in the Philippine Islands where I succeeded in
acquiring all of the property that I now possess, it is my wish that the distribution of my property and
everything in connection with this, my will, be made and disposed of in accordance with the laws in
force in the Philippine islands, requesting all of my relatives to respect this wish, otherwise, I annul and
cancel beforehand whatever disposition found in this will favorable to the person or persons who fail to
comply with this request.
The institution of legatees in this will is conditional, and the condition is that the instituted legatees must
respect the testator's will to distribute his property, not in accordance with the laws of his nationality, but in
accordance with the laws of the Philippines.
If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the herein
oppositor who, by his attitude in these proceedings has not respected the will of the testator, as expressed, is
prevented from receiving his legacy.
The fact is, however, that the said condition is void, being contrary to law, for article 792 of the civil Code
provides the following:
Impossible conditions and those contrary to law or good morals shall be considered as not imposed
and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator
otherwise provide.
And said condition is contrary to law because it expressly ignores the testator's national law when, according to
article 10 of the civil Code above quoted, such national law of the testator is the one to govern his testamentary
dispositions.
Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the institution
of legatees in said will is unconditional and consequently valid and effective even as to the herein oppositor.
It results from all this that the second clause of the will regarding the law which shall govern it, and to the
condition imposed upon the legatees, is null and void, being contrary to law.
All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective it
not appearing that said clauses are contrary to the testator's national law.
Therefore, the orders appealed from are modified and it is directed that the distribution of this estate be made
in such a manner as to include the herein appellant Andre Brimo as one of the legatees, and the scheme of

partition submitted by the judicial administrator is approved in all other respects, without any pronouncement
as to costs.
So ordered.
Street, Malcolm, Avancea, Villamor and Ostrand, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-68470 October 8, 1985
ALICE REYES VAN DORN, petitioner,
vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court of the National
Capital Region Pasay City and RICHARD UPTON respondents.

MELENCIO-HERRERA, J.:\
In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside the Orders,
dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P, issued by respondent Judge, which
denied her Motion to Dismiss said case, and her Motion for Reconsideration of the Dismissal Order,
respectively.
The basic background facts are that petitioner is a citizen of the Philippines while private respondent is a
citizen of the United States; that they were married in Hongkong in 1972; that, after the marriage, they
established their residence in the Philippines; that they begot two children born on April 4, 1973 and December
18, 1975, respectively; that the parties were divorced in Nevada, United States, in 1982; and that petitioner has
re-married also in Nevada, this time to Theodore Van Dorn.
Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the Regional
Trial Court, Branch CXV, in Pasay City, stating that petitioner's business in Ermita, Manila, (the Galleon Shop,
for short), is conjugal property of the parties, and asking that petitioner be ordered to render an accounting of
that business, and that private respondent be declared with right to manage the conjugal property. Petitioner
moved to dismiss the case on the ground that the cause of action is barred by previous judgment in the divorce
proceedings before the Nevada Court wherein respondent had acknowledged that he and petitioner had "no
community property" as of June 11, 1982. The Court below denied the Motion to Dismiss in the mentioned
case on the ground that the property involved is located in the Philippines so that the Divorce Decree has no
bearing in the case. The denial is now the subject of this certiorari proceeding.
Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to appeal. certiorari
and Prohibition are neither the remedies to question the propriety of an interlocutory order of the trial Court.
However, when a grave abuse of discretion was patently committed, or the lower Court acted capriciously and
whimsically, then it devolves upon this Court in a certiorari proceeding to exercise its supervisory authority and
to correct the error committed which, in such a case, is equivalent to lack of jurisdiction. 1 Prohibition would
then lie since it would be useless and a waste of time to go ahead with the proceedings. 2 Weconsider the
petition filed in this case within the exception, and we have given it due course.

For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in the
Philippines.
Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property because of
the representation he made in the divorce proceedings before the American Court that they had no community
of property; that the Galleon Shop was not established through conjugal funds, and that respondent's claim is
barred by prior judgment.
For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail over the
prohibitive laws of the Philippines and its declared national policy; that the acts and declaration of a foreign
Court cannot, especially if the same is contrary to public policy, divest Philippine Courts of jurisdiction to
entertain matters within its jurisdiction.
For the resolution of this case, it is not necessary to determine whether the property relations between
petitioner and private respondent, after their marriage, were upon absolute or relative community property,
upon complete separation of property, or upon any other regime. The pivotal fact in this case is the
Nevada divorce of the parties.
The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who appeared
in person before the Court during the trial of the case. It also obtained jurisdiction over private respondent who,
giving his address as No. 381 Bush Street, San Francisco, California, authorized his attorneys in the divorce
case, Karp & Gradt Ltd., to agree to the divorce on the ground of incompatibility in the understanding that there
were neither community property nor community obligations. 3 As explicitly stated in the Power of Attorney he
executed in favor of the law firm of KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in the
divorce proceedings:
xxx xxx xxx
You are hereby authorized to accept service of Summons, to file an Answer, appear on my
behalf and do an things necessary and proper to represent me, without further contesting,
subject to the following:
1. That my spouse seeks a divorce on the ground of incompatibility.
2. That there is no community of property to be adjudicated by the Court.
3. 'I'hat there are no community obligations to be adjudicated by the court.
xxx xxx xxx 4
There can be no question as to the validity of that Nevada divorce in any of the States of the United States.
The decree is binding on private respondent as an American citizen. For instance, private respondent cannot
sue petitioner, as her husband, in any State of the Union. What he is contending in this case is that the divorce
is not valid and binding in this jurisdiction, the same being contrary to local law and public policy.
It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only Philippine
nationals are covered by the policy against absolute divorces the same being considered contrary to our
concept of public police and morality. However, aliens may obtain divorces abroad, which may be recognized
in the Philippines, provided they are valid according to their national law. 6 In this case, the divorce in Nevada
released private respondent from the marriage from the standards of American law, under which divorce
dissolves the marriage. As stated by the Federal Supreme Court of the United States in Atherton vs. Atherton,
45 L. Ed. 794, 799:

The purpose and effect of a decree of divorce from the bond of matrimony by a court of
competent jurisdiction are to change the existing status or domestic relation of husband and
wife, and to free them both from the bond. The marriage tie when thus severed as to one party,
ceases to bind either. A husband without a wife, or a wife without a husband, is unknown to the
law. When the law provides, in the nature of a penalty. that the guilty party shall not marry again,
that party, as well as the other, is still absolutely freed from the bond of the former marriage.
Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no
standing to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. As
he is bound by the Decision of his own country's Court, which validly exercised jurisdiction over him, and
whose decision he does not repudiate, he is estopped by his own representation before said Court from
asserting his right over the alleged conjugal property.
To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to
private respondent and still subject to a wife's obligations under Article 109, et. seq. of the Civil Code cannot be
just. Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to
private respondent. The latter should not continue to be one of her heirs with possible rights to conjugal
property. She should not be discriminated against in her own country if the ends of justice are to be served.
WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the Complaint filed
in Civil Case No. 1075-P of his Court.
Without costs.
SO ORDERED.
Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Patajo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 80116 June 30, 1989
IMELDA MANALAYSAY PILAPIL, petitioner,
vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial Court of
Manila, Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal of Manila; and ERICH
EKKEHARD GEILING, respondents.

REGALADO, J.:
An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only to be
followed by a criminal infidelity suit of the latter against the former, provides Us the opportunity to lay down a
decisional rule on what hitherto appears to be an unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private respondent Erich
Ekkehard Geiling, a German national, were married before the Registrar of Births, Marriages and Deaths at
Friedensweiler in the Federal Republic of Germany. The marriage started auspiciously enough, and the couple
lived together for some time in Malate, Manila where their only child, Isabella Pilapil Geiling, was born on April
20, 1980. 1
Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by a separation de
facto between them.
After about three and a half years of marriage, such connubial disharmony eventuated in private respondent
initiating a divorce proceeding against petitioner in Germany before the Schoneberg Local Court in January,
1983. He claimed that there was failure of their marriage and that they had been living apart since April, 1982.
Petitioner, on the other hand, filed an action for legal separation, support and separation of property before the
Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where the same is still pending as Civil
Case No. 83-15866. 3
On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany, promulgated
a decree of divorce on the ground of failure of marriage of the spouses. The custody of the child was granted
to petitioner. The records show that under German law said court was locally and internationally competent for

the divorce proceeding and that the dissolution of said marriage was legally founded on and authorized by the
applicable law of that foreign jurisdiction. 4
On June 27, 1986, or more than five months after the issuance of the divorce decree, private respondent filed
two complaints for adultery before the City Fiscal of Manila alleging that, while still married to said respondent,
petitioner "had an affair with a certain William Chia as early as 1982 and with yet another man named Jesus
Chua sometime in 1983". Assistant Fiscal Jacinto A. de los Reyes, Jr., after the corresponding investigation,
recommended the dismissal of the cases on the ground of insufficiency of evidence. 5 However, upon review,
the respondent city fiscal approved a resolution, dated January 8, 1986, directing the filing of two complaints
for adultery against the petitioner. 6 The complaints were accordingly filed and were eventually raffled to two
branches of the Regional Trial Court of Manila. The case entitled "People of the Philippines vs. Imelda Pilapil
and William Chia", docketed as Criminal Case No. 87-52435, was assigned to Branch XXVI presided by the
respondent judge; while the other case, "People of the Philippines vs. Imelda Pilapil and James Chua",
docketed as Criminal Case No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch XXV, of the same
court. 7
On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the aforesaid resolution
of respondent fiscal be set aside and the cases against her be dismissed. 8 A similar petition was filed by
James Chua, her co-accused in Criminal Case No. 87-52434. The Secretary of Justice, through the Chief
State Prosecutor, gave due course to both petitions and directed the respondent city fiscal to inform the
Department of Justice "if the accused have already been arraigned and if not yet arraigned, to move to defer
further proceedings" and to elevate the entire records of both cases to his office for review. 9
Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspend further
proceedings thereon. 10 As a consequence, Judge Leonardo Cruz suspended proceedings in Criminal Case
No. 87-52434. On the other hand, respondent judge merely reset the date of the arraignment in Criminal Case
No. 87-52435 to April 6, 1987. Before such scheduled date, petitioner moved for the cancellation of the
arraignment and for the suspension of proceedings in said Criminal Case No. 87-52435 until after the
resolution of the petition for review then pending before the Secretary of Justice. 11 A motion to quash was also
filed in the same case on the ground of lack of jurisdiction, 12 which motion was denied by the respondent judge
in an order dated September 8, 1987. The same order also directed the arraignment of both accused therein,
that is, petitioner and William Chia. The latter entered a plea of not guilty while the petitioner refused to be
arraigned. Such refusal of the petitioner being considered by respondent judge as direct contempt, she and her
counsel were fined and the former was ordered detained until she submitted herself for arraignment. 13 Later,
private respondent entered a plea of not guilty. 14
On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a prayer for a
temporary restraining order, seeking the annulment of the order of the lower court denying her motion to
quash. The petition is anchored on the main ground that the court is without jurisdiction "to try and decide the
charge of adultery, which is a private offense that cannot be prosecuted de officio (sic), since the purported
complainant, a foreigner, does not qualify as an offended spouse having obtained a final divorce decree under
his national law prior to his filing the criminal complaint." 15
On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents from
implementing the aforesaid order of September 8, 1987 and from further proceeding with Criminal Case No.
87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A. Ordoez acted on the aforesaid
petitions for review and, upholding petitioner's ratiocinations, issued a resolution directing the respondent city
fiscal to move for the dismissal of the complaints against the petitioner. 16
We find this petition meritorious. The writs prayed for shall accordingly issue.

Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four other crimes against
chastity, cannot be prosecuted except upon a sworn written complaint filed by the offended spouse. It has long
since been established, with unwavering consistency, that compliance with this rule is a jurisdictional, and not
merely a formal, requirement. 18 While in point of strict law the jurisdiction of the court over the offense is
vested in it by the Judiciary Law, the requirement for a sworn written complaint is just as jurisdictional a
mandate since it is that complaint which starts the prosecutory proceeding 19 and without which the court
cannot exercise its jurisdiction to try the case.
Now, the law specifically provides that in prosecutions for adultery and concubinage the person who can legally
file the complaint should be the offended spouse, and nobody else. Unlike the offenses of seduction,
abduction, rape and acts of lasciviousness, no provision is made for the prosecution of the crimes of adultery
and concubinage by the parents, grandparents or guardian of the offended party. The so-called exclusive and
successive rule in the prosecution of the first four offenses above mentioned do not apply to adultery and
concubinage. It is significant that while the State, as parens patriae, was added and vested by the 1985 Rules
of Criminal Procedure with the power to initiate the criminal action for a deceased or incapacitated victim in the
aforesaid offenses of seduction, abduction, rape and acts of lasciviousness, in default of her parents,
grandparents or guardian, such amendment did not include the crimes of adultery and concubinage. In other
words, only the offended spouse, and no other, is authorized by law to initiate the action therefor.
Corollary to such exclusive grant of power to the offended spouse to institute the action, it necessarily follows
that such initiator must have the status, capacity or legal representation to do so at the time of the filing of the
criminal action. This is a familiar and express rule in civil actions; in fact, lack of legal capacity to sue, as a
ground for a motion to dismiss in civil cases, is determined as of the filing of the complaint or petition.
The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that the same
requirement and rationale would not apply. Understandably, it may not have been found necessary since
criminal actions are generally and fundamentally commenced by the State, through the People of the
Philippines, the offended party being merely the complaining witness therein. However, in the so-called "private
crimes" or those which cannot be prosecuted de oficio, and the present prosecution for adultery is of such
genre, the offended spouse assumes a more predominant role since the right to commence the action, or to
refrain therefrom, is a matter exclusively within his power and option.
This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the outrage in
silence rather than go through the scandal of a public trial. 20 Hence, as cogently argued by petitioner, Article
344 of the Revised Penal Code thus presupposes that the marital relationship is still subsisting at the time of
the institution of the criminal action for, adultery. This is a logical consequence since the raison d'etre of said
provision of law would be absent where the supposed offended party had ceased to be the spouse of the
alleged offender at the time of the filing of the criminal case. 21
In these cases, therefore, it is indispensable that the status and capacity of the complainant to commence the
action be definitely established and, as already demonstrated, such status or capacity must indubitably exist as
of the time he initiates the action. It would be absurd if his capacity to bring the action would be determined by
his status before or subsequent to the commencement thereof, where such capacity or status existed prior to
but ceased before, or was acquired subsequent to but did not exist at the time of, the institution of the case.
We would thereby have the anomalous spectacle of a party bringing suit at the very time when he is without
the legal capacity to do so.
To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as to when
precisely the status of a complainant as an offended spouse must exist where a criminal prosecution can be
commenced only by one who in law can be categorized as possessed of such status. Stated differently and
with reference to the present case, the inquiry ;would be whether it is necessary in the commencement of a

criminal action for adultery that the marital bonds between the complainant and the accused be unsevered and
existing at the time of the institution of the action by the former against the latter.
American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with ours,
yields the rule that after a divorce has been decreed, the innocent spouse no longer has the right to institute
proceedings against the offenders where the statute provides that the innocent spouse shall have the exclusive
right to institute a prosecution for adultery. Where, however, proceedings have been properly commenced, a
divorce subsequently granted can have no legal effect on the prosecution of the criminal proceedings to a
conclusion. 22
In the cited Loftus case, the Supreme Court of Iowa held that
'No prosecution for adultery can be commenced except on the complaint of the husband or
wife.' Section 4932, Code. Though Loftus was husband of defendant when the offense is said to
have been committed, he had ceased to be such when the prosecution was begun; and
appellant insists that his status was not such as to entitle him to make the complaint. We have
repeatedly said that the offense is against the unoffending spouse, as well as the state, in
explaining the reason for this provision in the statute; and we are of the opinion that the
unoffending spouse must be such when the prosecution is commenced. (Emphasis supplied.)
We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction, considering
our statutory law and jural policy on the matter. We are convinced that in cases of such nature, the status of
the complainant vis-a-vis the accused must be determined as of the time the complaint was filed. Thus, the
person who initiates the adultery case must be an offended spouse, and by this is meant that he is still married
to the accused spouse, at the time of the filing of the complaint.
In the present case, the fact that private respondent obtained a valid divorce in his country, the Federal
Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in the Philippines
insofar as private respondent is concerned 23 in view of the nationality principle in our civil law on the matter of
status of persons.
Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was granted by a United States
court between Alice Van Dornja Filipina, and her American husband, the latter filed a civil case in a trial court
here alleging that her business concern was conjugal property and praying that she be ordered to render an
accounting and that the plaintiff be granted the right to manage the business. Rejecting his pretensions, this
Court perspicuously demonstrated the error of such stance, thus:
There can be no question as to the validity of that Nevada divorce in any of the States of the
United States. The decree is binding on private respondent as an American citizen. For
instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. ...
It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only
Philippine nationals are covered by the policy against absolute divorces the same being
considered contrary to our concept of public policy and morality. However, aliens may obtain
divorces abroad, which may be recognized in the Philippines, provided they are valid according
to their national law. ...
Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as petitioner's husband entitled to exercise
control over conjugal assets. ... 25

Under the same considerations and rationale, private respondent, being no longer the husband of petitioner,
had no legal standing to commence the adultery case under the imposture that he was the offended spouse at
the time he filed suit.
The allegation of private respondent that he could not have brought this case before the decree of divorce for
lack of knowledge, even if true, is of no legal significance or consequence in this case. When said respondent
initiated the divorce proceeding, he obviously knew that there would no longer be a family nor marriage vows
to protect once a dissolution of the marriage is decreed. Neither would there be a danger of introducing
spurious heirs into the family, which is said to be one of the reasons for the particular formulation of our law on
adultery, 26 since there would thenceforth be no spousal relationship to speak of. The severance of the marital
bond had the effect of dissociating the former spouses from each other, hence the actuations of one would not
affect or cast obloquy on the other.
The aforecited case of United States vs. Mata cannot be successfully relied upon by private respondent. In
applying Article 433 of the old Penal Code, substantially the same as Article 333 of the Revised Penal Code,
which punished adultery "although the marriage be afterwards declared void", the Court merely stated that "the
lawmakers intended to declare adulterous the infidelity of a married woman to her marital vows, even though it
should be made to appear that she is entitled to have her marriage contract declared null and void, until and
unless she actually secures a formal judicial declaration to that effect". Definitely, it cannot be logically inferred
therefrom that the complaint can still be filed after the declaration of nullity because such declaration that the
marriage is void ab initio is equivalent to stating that it never existed. There being no marriage from the
beginning, any complaint for adultery filed after said declaration of nullity would no longer have a leg to stand
on. Moreover, what was consequently contemplated and within the purview of the decision in said case is the
situation where the criminal action for adultery was filed before the termination of the marriage by a judicial
declaration of its nullity ab initio. The same rule and requisite would necessarily apply where the termination of
the marriage was effected, as in this case, by a valid foreign divorce.
Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 27 must suffer the same
fate of inapplicability. A cursory reading of said case reveals that the offended spouse therein had duly and
seasonably filed a complaint for adultery, although an issue was raised as to its sufficiency but which was
resolved in favor of the complainant. Said case did not involve a factual situation akin to the one at bar or any
issue determinative of the controversy herein.
WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and another one
enteredDISMISSING the complaint in Criminal Case No. 87-52435 for lack of jurisdiction. The temporary
restraining order issued in this case on October 21, 1987 is hereby made permanent.
SO ORDERED.
Melencio-Herrera, Padilla and Sarmiento, JJ., concur.

Separate Opinions

PARAS, J., concurring:

It is my considered opinion that regardless of whether We consider the German absolute divorce as valid also
in the Philippines, the fact is that the husband in the instant case, by the very act of his obtaining an absolute
divorce in Germany can no longer be considered as the offended party in case his former wife actually has
carnal knowledge with another, because in divorcing her, he already implicitly authorized the woman to have
sexual relations with others. A contrary ruling would be less than fair for a man, who is free to have sex will be
allowed to deprive the woman of the same privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute divorce
between the American husband and his American wife as valid and binding in the Philippines on the theory that
their status and capacity are governed by their National law, namely, American law. There is no decision yet of
the Supreme Court regarding the validity of such a divorce if one of the parties, say an American, is married to
a Filipino wife, for then two (2) different nationalities would be involved.
In the book of Senate President Jovito Salonga entitled Private International Law and precisely because of
theNational law doctrine, he considers the absolute divorce as valid insofar as the American husband is
concerned but void insofar as the Filipino wife is involved. This results in what he calls a "socially grotesque
situation," where a Filipino woman is still married to a man who is no longer her husband. It is the opinion
however, of the undersigned that very likely the opposite expresses the correct view. While under the national
law of the husband the absolute divorce will be valid, still one of the exceptions to the application of the proper
foreign law (one of the exceptions to comity) is when the foreign law will work an injustice or injury to the
people or residents of the forum. Consequently since to recognize the absolute divorce as valid on the part of
the husband would be injurious or prejudicial to the Filipino wife whose marriage would be still valid under her
national law, it would seem that under our law existing before the new Family Code (which took effect on
August 3, 1988) the divorce should be considered void both with respect to the American husband and the
Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the husband
was an American can with a Filipino wife because in said case the validity of the divorce insofar as the Filipino
wife is concerned was NEVER put in issue.

Separate Opinions
PARAS, J., concurring:
It is my considered opinion that regardless of whether We consider the German absolute divorce as valid also
in the Philippines, the fact is that the husband in the instant case, by the very act of his obtaining an absolute
divorce in Germany can no longer be considered as the offended party in case his former wife actually has
carnal knowledge with another, because in divorcing her, he already implicitly authorized the woman to have
sexual relations with others. A contrary ruling would be less than fair for a man, who is free to have sex will be
allowed to deprive the woman of the same privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute divorce
between the American husband and his American wife as valid and binding in the Philippines on the theory that
their status and capacity are governed by their National law, namely, American law. There is no decision yet of
the Supreme Court regarding the validity of such a divorce if one of the parties, say an American, is married to
a Filipino wife, for then two (2) different nationalities would be involved.
In the book of Senate President Jovito Salonga entitled Private International Law and precisely because of
theNational law doctrine, he considers the absolute divorce as valid insofar as the American husband is
concerned but void insofar as the Filipino wife is involved. This results in what he calls a "socially grotesque

situation," where a Filipino woman is still married to a man who is no longer her husband. It is the opinion
however, of the undersigned that very likely the opposite expresses the correct view. While under the national
law of the husband the absolute divorce will be valid, still one of the exceptions to the application of the proper
foreign law (one of the exceptions to comity) is when the foreign law will work an injustice or injury to the
people or residents of the forum. Consequently since to recognize the absolute divorce as valid on the part of
the husband would be injurious or prejudicial to the Filipino wife whose marriage would be still valid under her
national law, it would seem that under our law existing before the new Family Code (which took effect on
August 3, 1988) the divorce should be considered void both with respect to the American husband and the
Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the husband
was an American can with a Filipino wife because in said case the validity of the divorce insofar as the Filipino
wife is concerned was NEVER put in issue.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-37048

March 7, 1933

MANUELA BARRETTO GONZALEZ, plaintiff-appellee,

vs.
AUGUSTO C. GONZALEZ, defendant-appellant.
AUGUSTO C. GONZALEZ, Jr., ET AL., intervenors-appellees.
Quintin Paredes and Barrera and Reyes for appellant.
DeWitt, Perkins and Brady for plaintiff-appellee.
Camus and Delgado for intervenors-appellees.
HULL, J.:
Plaintiff and defendant are citizens of the Philippine Islands and at present residents of the City of Manila. They
were married in the City of Manila on January 19, 1919, and lived together as man and wife in the Philippine
Islands until the spring of 1926. They voluntarily separated and since that time have not lived together as man
and wife. Of this union four children were born who are now 11, 10, 8 and 6 years of age. Negotiations
between the parties, both being represented by attorneys, continued for several months, whereupon it was

mutually agreed to allow the plaintiff for her support and that of her children, five hundred pesos (P500)
monthly; this amount to be increased in case of illness or necessity, and the title of certain properties to be put
in her name. Shortly after this agreement the husband left the Islands, betook himself to Reno, Nevada, and
secured in that jurisdiction an absolute divorce on the ground of desertion, which decree was dated November
28, 1927. Shortly thereafter the defendant moved to California and returned to these Islands in August 1928,
where he has since remained. On the same date that he secured a divorce in Nevada he went through the
forms of marriage with another citizen of these Islands and now has three children as a result of that marriage.
Defendant, after his departure from these Islands, reduced the amount he had agreed to pay monthly for the
support of his wife and four minor children and has not made the payments fixed in the Reno divorce as
alimony.
Shortly after his return his wife brought action in the Court of First Instance of Manila requesting that the courts
of the Philippine Islands confirm and ratify the decree of divorce issued by the courts of the State of Nevada;
that section 9 of Act No. 2710, which reads as follows:
The decree of divorce shall dissolve the community of property as soon as such decree becomes final,
but shall not dissolve the bonds of matrimony until one year thereafter.
The bonds of matrimony shall not be considered as dissolved with regard to the spouse who, having
legitimate children, has not delivered to each of them or to the guardian appointed by the court, within
said period of one year, the equivalent of what would have been due to them as their legal portion if
said spouse had died intestate immediately after the dissolution of the community of property.
be enforced, and that she and the defendant deliver to the guardian ad litem the equivalent of what would have
been due to their children as their legal portion from the respective estates had their parents did intestate on
November 28, 1927. It is also prayed that the community existing between plaintiff and defendant be declared
dissolved and the defendant be ordered to render an accounting and to deliver to the plaintiff her share of the
community property, that the defendant be ordered to pay the plaintiff alimony at the rate of five hundred pesos
(P500) per month, that the defendant be ordered to pay the plaintiff, as counsel fees, the sum of five thousand
pesos (P5000), and that the defendant be ordered to pay plaintiff the expenses incurred in educating the three
minor sons.
A guardian ad litem was appointed for the minor children, and they appear as intervenors and join their mother
in these proceedings. The Court of First Instance, after hearing, found against the defendant and granted
judgment as prayed for by the plaintiff and intervenors, with the exception of reducing attorneys fees to three
thousand, and also granted costs of the action against the defendant. From this judgment defendant appeals
and makes the following assignment of errors:
I. The lower court erred in not declaring that paragraph 2 of section 9 of the Philippine Divorce Law, is
unconstitutional, null and void.
II. The lower court erred in holding that section 9 of Act No. 2710 (Divorce Law) applies to the Nevada
decree of divorce issued in favor of appellant Augusto C. Gonzalez, said decree being entitled to
confirmation and recognition.
III. The lower court erred in not dismissing the complaint in intervention for lack of cause of action
against appellant and appellee.
IV. The lower court erred in not declaring the notice of lis pendens filed by intervenors to be null and
void.

V. The lower court erred in ordering the appellant to pay the sum of P500 per month for the support not
only of his children but also of his ex-wife, appellee herein, Manuela Barretto.
VI. The lower court erred in not holding that plaintiff- appellee, Manuela Barretto, is not entitled to
support from her ex-husband, herein appellant, over and beyond the alimony fixed by the divorce
decree in Exhibit A.
VII. The lower court erred in condemning defendant appellant to pay to plaintiff-appellee P3,000
attorney's fees.
VIII. The lower court erred in denying appellant's motion for new trial.
While the parties in this action are in dispute over financial matters they are in unity in trying to secure the
courts of this jurisdiction to recognize and approve of the Reno divorce. On the record here presented this can
not be done. The public policy in this jurisdiction on the question of divorce is clearly set forth in Act No. 2710,
and the decisions of this court: Goitia vs. Campos Rueda (35 Phil., 252); Garcia Valdez vs. Soteraa
Tuason (40 Phil., 943-952); Ramirez vs. Gmur (42 Phil., 855); Chereau vs. Fuentebella (43 Phil.,
216); Fernandez vs. De Castro(48 Phil., 123); Gorayeb vs. Hashim (50 Phil., 22); Francisco vs. Tayao (50
Phil., 42); Alkuino Lim Pang vs. Uy Pian Ng Shun and Lim Tingco (52 Phil., 571); and the late case of Cousins
Hix vs. Fluemer, decided March 21, 1931, and reported in 55 Phil., 851.
The entire conduct of the parties from the time of their separation until the case was submitted to this court, in
which they all prayed that the Reno divorce be ratified and confirmed, clearly indicates a purpose to circumvent
the laws of the Philippine Islands regarding divorce and to secure for themselves a change of status for
reasons and under conditions not authorized by our law. At all times the matrimonial domicile of this couple has
been within the Philippine Islands and the residence acquired in the State of Nevada by the husband of the
purpose of securing a divorce was not a bona fide residence and did not confer jurisdiction upon the Court of
that State to dissolve the bonds if matrimony in which he had entered in 1919. While the decisions of this court
heretofore in refusing to recognize the validity of foreign divorce has usually been expressed in the negative
and have been based upon lack of matrimonial domicile or fraud or collusion, we have not overlooked the
provisions of the Civil Code now in force in these Islands. Article 9 thereof reads as follows:
The laws relating to family rights and duties, or to the status, condition and legal capacity or persons,
are binding upon Spaniards even though they reside in a foreign country.
And article 11, the last part of which reads:
. . . the prohibitive laws concerning persons, their acts and their property, and those intended to
promote public order and good morals, shall nor be rendered without effect by any foreign laws or
judgments or by anything done or any agreements entered into a foreign country.
It is therefore a serious question whether any foreign divorce relating to citizens of the Philippine Islands, will
be recognized in this jurisdiction, except it be for a cause, and under conditions for which the courts of
Philippine Islands would grant a divorce. The lower court in granting relief as prayed for frankly stated that the
securing of the divorce, the contracting of another marriage and the bringing into the world of innocent children
brings about such a condition that the court must grant relief. The hardships of the existing divorce laws of the
Philippine Islands are well known to the members of the Legislature. It is of no moment in this litigation what he
personal views of the writer on the subject of divorce may be. It is the duty of the courts to enforce the laws of
divorce as written by the Legislature if they are constitutional. Courts have no right to say that such laws are
too strict or too liberal.

Litigants by mutual agreement can not compel the courts to approve of their own actions or permit the personal
relations of the citizens of these Islands to be affected by decrees of foreign courts in a manner which our
Government believes is contrary to public order and good morals. Holding the above views it becomes
unnecessary to discuss the serious constitutional question presented by appellant in his first assignment of
error.
The judgment of the Court of First Instance of the City of Manila must therefore be reversed and defendant
absolved from the demands made against him in this action. This, however, without prejudice to any right of
maintenance that plaintiff and the intervenors may have against defendant. No special pronouncement as to
costs. So ordered.
Avancea, C.J., Street, Villamor Ostrand, Abad Santos, Vickers, Imperial and Butte JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-2935

March 23, 1909

THE GOVERNMENT OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
GEORGE I. FRANK, defendant-appellant.

Bishop and O'Brien for appellant.

Attorney-General Wilfley for appellee.
JOHNSON, J.:
Judgment was rendered in the lower court on the 5th day of September, 1905. The defendant appealed. On
the 12th day of October, 1905, the appellant filed his printed bill of exceptions with the clerk of the Supreme
Court. On the 5th day of December, 1905, the appellant filed his brief with the clerk of the Supreme Court. On
the 19th day of January, 1906, the Attorney-General filed his brief in said cause. Nothing further was done in
said cause until on or about the 30th day of January, 1909, when the respective parties were requested by this
court to prosecute the appeal under the penalty of having the same dismissed for failure so to do; whereupon
the appellant, by petition, had the caused placed upon the calendar and the same was heard on the 2d day of
February, 1909.
The facts from the record appear to be as follows:
First. That on or about the 17th day of April, 1903, in the city of Chicago, in the state of Illinois, in the United
States, the defendant, through a respective of the Insular Government of the Philippine Islands, entered into a
contract for a period of two years with the plaintiff, by which the defendant was to receive a salary of 1,200
dollars per year as a stenographer in the service of the said plaintiff, and in addition thereto was to be paid in
advance the expenses incurred in traveling from the said city of Chicago to Manila, and one-half salary during
said period of travel.
Second. Said contract contained a provision that in case of a violation of its terms on the part of the defendant,
he should become liable to the plaintiff for the amount expended by the Government by way of expenses
incurred in traveling from Chicago to Manila and one-half salary paid during such period.
Third. The defendant entered upon the performance of his contract upon the 30th day of April, 1903, and was
paid half-salary from that date until June 4, 1903, the date of his arrival in the Philippine Islands.
Fourth. That on the 11th day of February, 1904, the defendant left the service of the plaintiff and refused to
make further compliance with the terms of the contract.
Fifth. On the 3d day of December, 1904, the plaintiff commenced an action in the Court of First Instance of the
city of Manila to recover from the defendant the sum of 269.23 dollars, which amount the plaintiff claimed had
been paid to the defendant as expenses incurred in traveling from Chicago to Manila, and as half salary for the
period consumed in travel.
Sixth. It was expressly agreed between the parties to said contract that Laws No. 80 and No. 224 should
constitute a part of said contract.
To the complaint of the plaintiff the defendant filed a general denial and a special defense, alleging in his
special defense that the Government of the Philippine Islands had amended Laws No. 80 and No. 224 and had
thereby materially altered the said contract, and also that he was a minor at the time the contract was entered
into and was therefore not responsible under the law.
To the special defense of the defendant the plaintiff filed a demurrer, which demurrer the court sustained.
Upon the issue thus presented, and after hearing the evidence adduced during the trial of the cause, the lower
court rendered a judgment against the defendant and in favor of the plaintiff for the sum of 265.90 dollars. The
lower court found that at the time the defendant quit the service of the plaintiff there was due him from the said

plaintiff the sum of 3.33 dollars, leaving a balance due the plaintiff in the sum of 265.90 dollars. From this
judgment the defendant appealed and made the following assignments of error:
1. The court erred in sustaining plaintiff's demurrer to defendant's special defenses.
2. The court erred in rendering judgment against the defendant on the facts.
With reference to the above assignments of error, it may be said that the mere fact that the legislative
department of the Government of the Philippine Islands had amended said Acts No. 80 and No. 224 by the
Acts No. 643 and No. 1040 did not have the effect of changing the terms of the contract made between the
plaintiff and the defendant. The legislative department of the Government is expressly prohibited by section 5
of the Act of Congress of 1902 from altering or changing the terms of the contract. The right which the
defendant had acquired by virtue of Acts No. 80 and No. 224 had not been changed in any respect by the fact
that said laws had been amended. These acts, constituting the terms of the contract, still constituted a part of
said contract and were enforceable in favor of the defendant.
The defendant alleged in his special defense that he was a minor and therefore the contract could not be
enforced against him. The record discloses that, at the time the contract was entered into in the State of
Illinois, he was an adult under the laws of that State and had full authority to contract. The plaintiff [the
defendant] claims that, by reason of the fact that, under the laws of the Philippine Islands at the time the
contract was made, male persons in said Islands did not reach their majority until they had attained the age of
23 years, he was not liable under said contract, contending that the laws of the Philippine Islands governed. It
is not disputed upon the contrary the fact is admitted that at the time and place of the making of the
contract in question the defendant had full capacity to make the same. No rule is better settled in law than that
matters bearing upon the execution, interpretation and validity of a contract are determined by the law of the
place where the contract is made. (Scudder vs. Union National Bank, 91 U. S., 406.) Matters connected with its
performance are regulated by the law prevailing at the place of performance. Matters respecting a remedy,
such as the bringing of suit, admissibility of evidence, and statutes of limitations, depend upon the law of the
place where the suit is brought. (Idem.)
The defendant's claim that he was an adult when he left Chicago but was a minor when he arrived at Manila;
that he was an adult at the time he made the contract but was a minor at the time the plaintiff attempted to
enforce the contract, more than a year later, is not tenable.
Our conclusions with reference to the first above assignment of error are, therefore:
First. That the amendments to Acts No. 80 and No. 224 in no way affected the terms of the contract in
question; and
Second. The plaintiff [defendant] being fully qualified to enter into the contract at the place and time the
contract was made, he can not plead infancy as a defense at the place where the contract is being enforced.
We believe that the above conclusions also dispose of the second assignment of error.
For the reasons above stated, the judgment of the lower court is affirmed, with costs.
Arellano, C. J., Torres, Mapa, Carson, and Willard, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC
G.R. No. L-7487 December 29, 1913
CONSTANZA YAEZ DE BARNUEVO, plaintiff and appellant,
vs.
GABRIEL FUSTER, defendant and appellant.
O'Brien & DeWitt for plaintiff.
Chicote & Miranda for defendant.

JOHNSON, J.:
On the 7th of February, 1875, Gabriel Fuster and Constanza Yaez were joined in a Catholic or canonical
marriage in the city of Malaga, Spain. In February of 1892, Gabriel Fuster came to the Philippine Islands,
settled, and acquired real and personal property. Toward the middle of 1896, Constanza Yaez came to
Manila, where her husband was residing, and here lived with him in conjugal relations until the month of April,
1899. On the 4th day of that month and year they made an agreement, in a public document, by which they
"resolved to separate and live apart, both consenting to such separation, and by virtue thereof the husband
authorized the wife to move to Spain, there to reside in such place as the said lady pleases." (B. of E., p. 13.)
In the same document, the husband undertook to send his wife the sum of 300 pesetas monthly for her
support, payable in Madrid, Spain, from the month of June of the said year 1899. The husband complied with
this obligation until August, 1899, after which time he ceased to make further payments.
In the beginning of March, 1909, the wife returned to the Philippines, but the husband had absented himself
therefrom in the early days of February of the same year. On the 11th of March, 1909, the wife commenced
divorce proceedings against her husband, alleging as cause of action the adultery committed by him in or
about the year 1899 with a certain woman that she named in the complaint and with whom he had lived and
cohabited and by whom he had had two children. She prayed that she be granted a decree of divorce; that the
court order the separation of the properties of the plaintiff and the defendant, to date from the date of the said
decree; that the conjugal society be therefore liquidated, and after the amount of the conjugal property had
been determined, that one-half thereof be adjudicated to her; furthermore, as to the amount of pension owing
for her support but not paid to her, that the defendant be ordered to pay her the sum of 36,000
Spanish pesetas, that is, 7,220 Spanish dollars, which, reduced to Philippine currency at the rate of exchange
on the date of the complaint, amounted to P12,959.90.
The defendant denied that either he or his wife was a resident of the city of Manila, as they had their domicile
in Barcelona, Spain, and he alleged that both of them were natives and subjects of Spain. He admitted that he
was married to Constanza Yaez; he also admitted having executed the document of the 4th of April, 1899, in
which he had undertaken to make an allowance for the support of his wife in Madrid, but he denied the other
paragraphs of the complaint. As a special defense with regard to the allowance, he alleged: "That in or about
the month of May, 1900, he wrote to his wife, the plaintiff, instructing her to return to Manila, with a view of
joining her husband and being maintained by him in his own house; that the communication was ignored by the
plaintiff, who against the will of the defendant, continued to live separately from him that from the year 1901,
the defendant did not know her address; that since 1900, the plaintiff has lived in comfort and has known
where her husband resided; that the plaintiff, during all of the time referred to, in addition to dispossing of
valuable property belonging to her husband, possessed and still possesses property of her own, acquired by
her, in greater amount than that owned by her husband; and that in any case the action has prescribed by
operation of law."(B. of E., pp. 7 and 8.) As to the divorce, he admits that he had by the plaintiff two children
that have died. He expressly denied the contents of paragraph 5 of the complaint, relating to the charge of

adultery and also those of paragraphs 6, 7, and 8, concerning the possession of real and personal property of
the conjugal partnership, the statement of their amount, and their qualification as being all conjugal property.
As a special defense, he alleged that prior to the year 1899 he conferred powers of attorney upon the plaintiff
to administer and collect property and credits pertaining to him to the value of about 200,000 pesos; that the
plaintiff accepted and exercised the said power of attorney, attached the property and collected the credits
without ever having rendered any account of them. As a special preferred defense, he alleged that neither the
trial court nor any other court in the Philippine Islands has jurisdiction over the subject matter of the complaint,
because, as to the allowance for support, since neither the plaintiff nor the defendant are residents of Manila,
or of any other place in the Philippine Islands, the agreement upon the subject was neither celebrated, nor was
it to be fulfilled, in the Philippine Islands; and as to the divorce, because the action therefore ought to be tried
by the ecclesiastical courts. In conclusion, he prayed that the court find: That the court was without jurisdiction
over the two causes of action; that even if it had jurisdiction, it could not order the payment of the sum claimed
as arrears of alimony; that, after all, the action with regard to this cause of action has prescribed; and as to the
prayer for a decree of divorce, the defendant should be acquitted, while on the other hand the plaintiff should
be required to render to the defendant an accounting, supported by proofs, of her operations as his attorney
and administratrix of his property in Spain.
In deciding the case, the Court of First Instance of the city of Manila held itself to have jurisdiction, decreed the
suspension of life in common between the plaintiff and defendant, ordered the latter to pay the former
P5,010.17, directed that the communal property be divided between the parties, with costs against the
defendant, and in event that the parties could not agree to the division, it was to be effected by commissioners
according to law.
Both parties appealed from this judgment, but notwithstanding the appeal, the partition of the property, by
means of commissioners, was proceeded with. These latter, after various vicissitudes, rendered their report
and account of the partition to the court, who then rendered final judgment, from which, also, both parties
appealed.
I. DEFENDANT'S APPEAL.
The first error assigned is the utter lack of jurisdiction of the trial court and of all other courts of the Islands to
try the case, either with regard to the fulfillment of the contract to furnish alimony, or to decree a divorce or
suspension of life in common between the spouses: lack of jurisdiction over the persons and over the subject
matter of the litigation; and over the persons of the contending parties, because neither of the spouses was a
resident of the Philippines on the date of the complaint.
The lower court did not commit this error attributed to him. The defendant had not proved that he had
elsewhere a legal domicile other than that which he manifestly had in the Philippines during the seventeen
years preceding the date of the complaint. On the contrary, it plainly appears, without proof to the contrary, that
during this not inconsiderable period, extending from the year 1892 until a month prior to the arrival of his wife
in the Philippines in March, 1909, he had constantly resided in the said Islands, had kept open house, and had
acquired in the city of Manila quite a little real property which is now the object of the division of the conjugal
society. It is also plainly shown, without proof to the contrary, that his wife resided in this city of Manila from the
middle of 1896 until April, 1899, at which time she was permitted by him to change her residence. It is affirmed
by the defendant in point five of his answer to the complaint, that in May, 1900, he sent a letter instructing the
plaintiff to return to Manila to live with her husband and to be supported by him in his house, but that the
plaintiff, against the will of the defendant, continued to live part from him. (B. of E., p. 7.) It is also affirmed in
the said answer, that during all of the time referred to in the complaint, and especially since 1900, the plaintiff
knew where her husband resided. (B. of E., p. 7.) It is also very evident that the contract, by virtue of which he
authorized his wife to move to Spain and residethere in such place as was agreeable to her, was executed in
these Islands, "in the city of Manila on the 4th of April, 1889," as is to be seen in the heading of the document.
(B. of E., p. 12.) Finally, at page 11 of his brief, he says that the record shows him to be a Spanish subject,

inscribed in the consulate of his nation, and cities article 26 of the Civil Code, the Treaty of Paris and the
Philippine Bill.
Granting these facts, there can be no doubt that the defendant, although a Spanish subject, was a resident of
these Islands. Article 26 of the Civil Code that he cites itself provides that "Spaniards who change their
domicile to a foreign country, where they may be considered as natives without other conditions than that of
residents therein, shall be required, in order to preserve the Spanish nationality, to state that such is their wish
before the Spanish diplomatic or consular agent, who must record them in the registry of Spanish residents, as
well as their spouses, should they be married, and any children they may have." From this provision, which is
the exclusive and irrefutable law governing the defendant, we are to conclude that the domicile of the
defendant and the plaintiff is fully proven, irrespective of the Treaty of Paris. Without this supposition of having
acquired his domicile and residence in these Islands, he could not have required his wife to return to live with
him therein because this requirement could only be based on articles 58 of the Civil Code of Spain, according
to which the wife is obliged to follow her husband wherever he wishes to establish his residence, or on article
48 of chapter 5 of the Marriage Law in force in the Philippines, which imposes upon the wife the duty of
obeying her husband, living in his company, or of following him to wherever he transfers his domicile or
residence. And just because he was absent for a month before his wife returned to the Philippines, he cannot
be understood to have surrendered his habitual domicile of more than seventeen years, without having
established any other afterwards, and without making any declaration in legal form, before he absented
himself, of it being his intention to change his domicile, while at the same time he retains here his house, real
property and all manner of means of subsistence. Section 377 of the Code of Civil Procedure leaves to the
election of the plaintiff the bringing of a personal action like the one at bar either in the place where the
defendant may reside or be found, or in that where the plaintiff resides.
The litigating spouses have gained not only domicile (domicilio) but also residence (vecindad) in Manila. In this
litigation the defendant claims that, born as he says in Mallorca, in the Balearic Islands, he is not subject, in his
marriage, to the rules governing conjugal property, that are in force in the territories of Spain that are governed
by the common law of Castillo (as the Philippines in their day), because they are opposed to the Foral Law in
force in the said Islands and which is respected by the Civil Code. Even if this defense could be sustained
herein, paragraph 2 of article 15 of the said Civil Code would be applicable. It provides: "For the purposes of
this article, residence (vecindad) will be acquired: By residence of ten years in common law provinces or
territories, unless before the termination of that time he manifests his will to the contrary; or by a residence of
two years, if the interested person declares this to be his will . . . In any case, the wife will follow the condition
of her husband. . . ." On no occasion had the defendant manifested his will to the contrary, not even as he was
leaving, after a residence of seventeen years, a month before the return of his wife to these Islands. On the
contrary, when he inscribed himself in the Spanish consulate, he declared his intention of continuing to reside
in the Islands as a Spaniard and not as a Mallorquin, subject as such to the common law of Spain.
In an endeavor to demonstrate the lack of jurisdiction of the courts of these Islands over the subject matter of
the complaint that is to try an action for divorce between two Catholic Spaniards, he alleges in his appeal: That
both litigants are Spanish subjects and that they contracted a Catholic marriage; that in accordance with article
9 of the Civil Code of Spain (the same as that of these Islands) the laws relating to family rights and duties, or
to the status, condition and legal capacity of persons, govern Spaniards although they reside in a foreign
country; that, in consequence, "all questions of a civil nature, such as those dealing with the validity or nullity of
the matrimonial bond, the domicile of the husband and wife, their support, as between them, the separation of
their properties, the rules governing property, marital authority, division of conjugal property, the classification of
their property, legal causes for divorce, the extent of the latter, the AUTHORITY to decree it, and, in general,
the civil effects of marriage and divorce upon the person and properties of the spouses, are questions that are
governed exclusively by the national law of the husband and wife, and, in our case, by the Spanish law by
virtue of article 9 as above set out." (Brief, p. 12.) The appellant and defendant continues his argument, saying:
That by the express provision of article 80 of the Civil Code of Spain, "jurisdiction in actions for divorce and
nullification of canonical marriages lies with ecclesiastical courts," while that of civil tribunals is limited to civil

marriages; that this being so, the action for divorce brought by the plaintiff in the cause does not fall within the
jurisdiction of the civil courts, according to his own law of persons, because these courts ought to apply the
Spanish law in accordance with the said article 9 of the Civil Cod of Spain, and this Spanish law grants the
jurisdiction over the present cause to the ecclesiastical courts, in the place of which no tribunal of these Islands
con subrogate itself. Says this appellant: "If a law of a foreign country were of rigorous application in a given
case, a North American tribunal would have no jurisdiction upon an ecclesiastical court and therefore the North
American tribunal in applying it would have to exercise a faculty which that law reserved to the ecclesiastical
court." (Brief, pp. 13, 14, and 15.)
Unless we take the question itself for granted, the foregoing reasoning cannot be upheld. The question is
precisely whether the courts of the Philippines are competent or have jurisdiction to decree the divorce now on
appeal, and it is taken for granted that the power to decree it is one of the rights included in the personal
statute, but appellant does not prove by any law or legal doctrine whatever that the personal statute of a
foreigner carries with it, to whether he transfers his domicile, the authority established by the law of his nation
to decree his divorce, which was what he had to demonstrate.
The authority of jurisdictional power of courts to decree a divorce is not comprised within the personal status of
the husband and wife, simply because the whole theory of the statutes and of the rights which belong to
everyone does not go beyond the sphere of private law, and the authority and jurisdiction of the courts are not
a matter of the private law of persons, but of the public or political law of the nation. "The jurisdiction of courts
and other questions relating to procedure are considered to be of a public nature and consequently are
generally submitted to the territorial principle. . . . All persons that have to demand justice in a case in which
foreigners intervene, since they can gain nothing by a simple declaration, should endeavor to apply to the
tribunales of the state which have coercive means (property situated in the territory) to enforce any decision
they may render. Otherwise, one would expose himself in the suit to making useless expenditures which,
although he won his case, would not contribute to secure his rights because of the court's lack of means to
enforce them." (Torres Campos, "Elementos de Derecho International Privado," p. 108.) "Justice," says the
same professor, "is a principle superior to that of nations, and it should therefore be administered without
taking into any account whatsoever the state to which the litigants belong. . . . In order to foster their relations
and develop their commerce, all civilized nations are interested in doing justice, not alone to their own people,
but to those foreigners who contract within the country or outside of it juridical ties which in some manner effect
their sovereignty. (Ibid, p. 107.) Might its courts, in some cases, in suits between foreigners residing in its
territory, apply the personal law of the parties, but abdicate their jurisdiction, refrain from administering justice
because the personal law of the foreigner gave the jurisdiction of the given case to some court that is not the
territorial one of the nation? This has never yet been claimed in any of the theories regarding the conflict of
laws arising out of questions of nationality and domicile; it would be equivalent to recognizing extraterritorial
law in favor of private persons. The provisions of article 80 of the Civil Law of Spain is only binding within the
dominions of Spain. It does not accompany the persons of the Spanish subject wherever he may go. He could
not successfully invoke it if he resided in Japan, in China, in Hongkong or in any other territory not subject to
the dominion of Spain. Foreign Catholics domiciled in Spain, subject to the ecclesiastical courts in actions for
divorce according to the said article 80 of the Civil Code, could not allege lack of jurisdiction by invoking, as the
law of their personal statute, a law of their nation which gives jurisdiction in such a case to territorial courts, or
to a certain court within or without the territory of their nation.1awphi1.net
It is a question that has already been settled in two decisions of the Supreme Court (Benedicto vs. De la
Rama, 3 Phil. Rep., 34, and Ibaez vs. Ortiz, 5 Phil. Rep., 325).
In the present action for divorce the Court of First Instance of the city of Manila did not lack jurisdiction over the
persons of the litigants, for, although Spanish Catholic subjects, they were residents of this city and had their
domicile herein.

The Courts of First Instance of the Philippine Islands have the power and jurisdiction to try actions for divorce.
That of the city of Manila did not lack jurisdiction by reason of the subject matter of the litigation.
The second assignment of error is directed against the finding of the court that the defendant had committed
adultery with a certain woman in this city from the year 1899 until 1909; the third was against the finding that
the adultery was accompanied by public scandal and injured the dignity of his wife; and the fourth for having
decreed the divorce, suspension of the married life, and the separation of the properties of the parties.
The evidence relating to the foregoing not being sent up on appeal, we are unable to review it, so we accept
the findings of the trial court.
There is a point of law regarding the claim that the adultery, even though it were proven would not be a cause
for divorce, because no public scandal resulted therefrom nor was there contempt displayed for the wife.
(Appellant's brief, p. 26.) The facts must be accepted by this tribunal as they were found by the trial court, since
the evidence cannot be reviewed; moreover, the appellee affirms the contrary and maintains that it is a proven
fact, public and notorious, an assertion that the trial court must have found to be proven. (Appellee's brief, p.
5.) In law, it is not necessary that adultery, to be a cause for divorce, should be accompanied by public scandal
and contempt for the wife. There is no law that requires this. Law 2, title 9, of the Fourth Partida does not
require it.
The fifth and sixth assignments of error are directed against the finding of the trial court that there exists
conjugal property, a finding that the appellant maintains is without foundation, and that which holds that the
property in the hands of the receiver (that sought to be divided) is conjugal property, a conclusion which the
appellant claims to be contrary to the law which should be applied to the case and according to which, as
alleged in the tenth assignment of error, the whole of the property should be adjudicated to the defendant as
being exclusively his.
Facts: The appellant affirms that he is a native of Mallorca in the Balearic Islands and that is also the condition
of his wife, the plaintiff. Law: That although the rule of the Civil Code is that which legally governs conjugal
property, yet at the same time it admits, as an exception, the laws, usages, and customs of the Foral Law,
according to which, as applied in the Balearic Islands, the law of the family is that of the division of property
and that of conjugal property is not known; so that the property pertains exclusively to the spouse who, by
whatever title, has acquired it. In support of the facts, appellant cites pages 27 to 37 and 39 to 41 in the bill of
exceptions; and of the law, the doctrinal authority of Manresa, Gutierrez, and Alcubilla.
The citation from pages 39 to 41 of the bill of exceptions, the only pertinent one, is but an affidavit filed by the
defendant in which, under oath, he himself testifies as to the Foral Law in the Balearic Islands. The adverse
party says with regard to this: "This affidavit was never presented in proof, was never received by the trial
judge, and cannot seriously be considered as an effort to establish the law of a foreign jurisdiction. Sections
300, 301 and 302 of the Code of Civil Procedure, now in force in these islands, indicate the method by which
the law of a foreign country may be proved. We maintain that the affidavit of a person not versed in the law,
which was never submitted as proof, never received by the trial court, and which has never been subjected to
any cross-examination, is not a means of proving a foreign law on which the defendant relies." (Brief, pp. 6 and
7.)
Furthermore, on the supposition that the defendant could invoke the Foral Law as the law of his personal
status in the matter of the regimen of his marriage, and that to allege this he be considered as authorized by
article 15 of the Civil Code, we have said before, in dealing with his law of domicile, that paragraph 2 of this
article 15 of the Civil Code would be entirely adverse to his claim, and if it be advanced that there is a similar
Foral Law in the Philippines by virtue of paragraph 1 of the said article 15, it might be said, though there is not
at present any need to say it, that it is not in force. The two findings attacked are in perfect accord with the law.
All the property of the marriage, says article 1407 of the Civil Code, shall be considered as conjugal property

until it is proven that it belongs exclusively to the husband or to the wife. No proof has been submitted to this
effect.
As seventh assignment of error it is alleged that the court below erred in holding in the judgment that the
plaintiff had brought to the marriage a dowry of 30,000 Spanish dollars. But the defendant himself adds that the
court made no order or decree regarding the alleged dowry. On the other hand, the plaintiff, in her fourth
assignment of errors, claimed that the court erred in not confirming the report of the commissioners which gave
to the said plaintiff the sum of 30,000 Spanish dollars. It is unnecessary to say anything further.
The eighth error consists in that the court below ordered the defendant to pay to the plaintiff P56,010.17
Philippine currency, whereas the plaintiff had made no demand in her complaint with respect to this sum; that
no arrears of payment are owing for alimony, even though payments had been stipulated in the contract,
unless they are claimed by the person who had furnished the actual support, and that alimony is due only
when it is necessary; so that, as the plaintiff has had no need of it for ten years, nor has she stated who has
furnished it, there is no reason for awaring her the amount of the arrears for all that time; that as she has
allowed ten years to elapse before claiming it, her action prescribed in 1904, that is to say, after five years.
The plaintiff acknowledges that there is no petition or prayer in her complaint as to this cause of action, but she
considers that in equity such an omission can be supplied.
Paragraph 3 of section 89 (90) of the Code of Civil Procedure determines one of the requisites of the
complaint: "A demand for the relief which the plaintiff claims." The section goes on to say: "If the recovery of
money or damages is demanded, the amount demanded must be stated. If special relief, such as an order for
the special restitution of property, etc., the ground of demanding such relief must be stated and the special
relief prayed for. But there may be added to the statement of the specific relief demanded a general prayer for
such further or other relief as shall be deemed equitable."
In the complaint of the case at bar the provisions of paragraph 2 of the said section 89 [90] are complied with
by setting forth in its paragraphs 4 and 5 the relation of the cause of action, that is, the contract of the 4th of
April, 1899, by which the defendant obligated himself to send to the plaintiff in Spain a certain amount of
money monthly, for her support, and the failure to comply with this obligation after the month of August, 1899.
Paragraph 6, as a consequence of the promise established in 4 and 5, says as follows: "That the defendant
Gabriel Fuster y Fuster actually owes the plaintiff the sum of 36,100 Spanish pesetas, that is, 7,220 dollars,
which, reduced at the present rate of exchange, amounts to the sum of P12,959.90, Philippine currency." (B. of
E., p. 2.) In the case of default on the part of the defendant "the court shall proceed to hear the plaintiff and his
witnesses and assess the damages or determine the other relief to which the plaintiff may be entitled, including
the costs of the action, and render final judgment for the plaintiff to recover such sum or to receive such other
relief as the pleadings and the facts warrant." The pleadings, not the prayer of the complaint.
This court has recently decided that the pleadings, not the prayer, exactly, are the essential part of a complaint.
It is not a question of alimony for the present, nor for the future, which constitutes the first cause of action, but
of certain sums stipulated in a contract. This contract is a law for the contracting parties, a law which rises
superior to those general laws which regulate the nature of the subject matter of the contract (in the present
case an entirely voluntary one) and which govern judicial action.
An action arising out of a contract of this nature does not prescribe like all personal ones, but, by the provisions
of article 1964 of the Civil Code, after fifteen years. But even though the provisions of article 1966 were
applicable, by which an action to compel the fulfillment of an agreement to pay alimony prescribes in five
years, yet by section 50 of the Code of Civil Procedure, "when payment has been made upon any demand
founded upon contract . . . an action may be brought . . . after such payment. . . ." And the parties admit that on
the 18th of August, 1908, the plaintiff secured the payment of 6,365.68 pesetas by virtue of the contract of April

4, 1899. So that from August, 1908, until March, 1909, the date of the complaint, the said period of five years
had not elapsed.
The ninth assignment of error consists in that the court below erred in empowering the receiver to proceed to
the separation of the property and in appointing commissioners to make the partition and distribution between
the spouses, since the principal question in this action hinges upon the classification of the property; that it was
erroneously classified as conjugal property, whereas all of it pertained to the husband alone and should be
adjudicated to him for the reason that, as it reiterated in the tenth assignment of error, the conjugal partnership
was not subject to the provisions of the law governing conjugal property, because such provision are totally
foreign to the Foral Law of the Balearic Islands.
The action of the trial court, by the terms of section 184 of the Code of Civil Procedure, was in accordance with
law. The only question before this court is the partition of real property. All that referred to in the second
decision appealed from, dated September 9, 1911, is urban real estate. Its classification as conjugal property is
in accordance with law, as is shown in the foregoing reasoning, and that no consideration of the Foral Law
enters into the question has also been demonstrated.
II. PLAINTIFF'S APPEAL.
As the trial court rendered judgment ordering the defendant to pay to the plaintiff only P5,010.17, the petitioner
here prays that the judgment be reversed and that in its place this court order the defendant to pay to the
plaintiff her claim of P12,959.90, plus the additional sum which the alimony amounts to at the rate of P107.70
per month, dating from the 1st of August, 1909, until the date of payment, with legal interest upon the said
P12,959.90 from the date of the filing of the complaint until the date of payment, and, furthermore, legal
interest upon each of the monthly payments due after the filing of the complaint, and which will continue to
become due until the close of this litigation.
The trial court made the following findings: First, that the total amount of the alimony owing to the plaintiff
amounted to 34,200 pesetas; second, that of this sum the plaintiff had collected in Madrid 6,365.68; third, that
the remainder, that is, 27,834.32, was equivalent to $5,566.86 Mexican currency; fourth, that the Mexican peso
was worth 90 centavos Philippine currency; fifth, that therefore the sum of $5,566.86 Mexican currency was
equivalent to P5,010 Philippine currency; and finally, as there was no evidence as to the kind
of pesetas agreed upon, it was to be presumed that it was that current at the time and place where the
agreement was made, which was Mexican pesetas.
In her appeal, the plaintiff contends that these findings are erroneous in that, firstly, the parties had admitted
that the pesetas referred to in the contract of the 4th of April, 1899, were Spanish, and in view of this admission
the court was not empowered to define them as being different from the kind admitted by the parties; secondly,
if he were so empowered, his interpretation should be governed by the terms of the law.
With regard to the first error, the plaintiff says that the statement is made in her complaint that the defendant
had obligated himself to pay her a "monthly pension for her support of 300 Spanish pesetas, that is, 60
Spanish dollars, which, reduced to Philippine currency, amounts to P107.70;" that the defendant had admitted
this in hi answer to the complaint, and that by his finding in a sense other than that accepted and not refuted in
the answer of the defendant, the court violated the provisions of section 94 of the Code of Civil Procedure.
The court has not incurred this error, because it does not appear that the defendant in his answer accepted the
fact in the manner alleged in the complaint. The defendant said that he admitted having made the agreement
referred to in paragraph 4 of the complaint, and that he stood upon its contents. The contents of the document
to which he refers is of the following tenor: "Mr. Fuster binds and obligates himself to pay to his said wife the
sum of 300 pesetas, monthly, payable de su cuenta in the city and capital of Madrid, for her support. . . ." He

did not therefore admit the matter of the Spanish pesetas; that does not appear in the contents of the
document the only thing he admitted in his answer.
As to the second error, the court did not commit it in applying the rule contained in article 1287 of the Civil
Code. "The usages or customs of the country shall be taken into consideration in interpreting ambiguity in
contracts. . . ." If in the contract the word " pesetas," not being specific, was ambiguous, then it was in harmony
with this precept to interpret it as being the peseta then in use or current when and where the agreement was
made, Mexican being then the usual and current money in the Philippines. Furthermore, the phrase de su
cuenta clearly means that it was not "Spanish pesetas" that the contracting parties had in mind, because if the
agreement had been a specific one to pay 300 Spanish pesetas in Madrid, everyone would of course
understand that the expense of following the fluctuations of change and of the differences in value between the
money current in the country, and the Spanish pesetas, would have to be defrayed by the obligated party;
whereas, if nothing more than pesetaswas mentioned, it was necessary to decide which party should pay for
the difference in value so that the 300pesetas stipulated here should be 300 Spanish pesetas paid in Madrid.
Against the reasons of the court below for his decision this court can offer no legal grounds. The rule of
interpretation cited is the one applicable and it supports the reasoning of the decision appealed from.
The appellant also alleges as error that the court did not adjudicate to her the 30,000 Spanish dollars which the
commissioners proposed in their report. First she characterizes this sum of 30,000 dollars as the dowry of the
wife delivered to the husband, then, later, as paraphernal property brought to the marriage.
According to the last instructions of the court to the commissioners, this amount of 30,000 dollars could not
enter into the partition, and with reason. If, as was claimed, it was inherited by the plaintiff from her uncle, it
really constitutes paraphernal property under article 1381. "Paraphernal property is that which the wife brings
to the marriage without being included in the dowry and that she may acquire after the creation of the same
without being added thereto." But it is a provision of article 1384 that "The wife shall have the management of
the paraphernal property unless she has delivered the same to her husband, before a notary, in order that he
may administer said property. In such case the husband is obliged to create a mortgage for the value of the
personal property he may receive, or to secure said property, in the manner established for the dowry
property." Not even was there offered in evidence the public deed of delivery, nor the equally public mortgage
deed that is required by law. So that, therefore, the necessary proof of the obligation to return paraphernal
property as here demanded does not exist.lawphil.net
The partition of property decreed in the judgment appealed from of the 9th of September, 1911, should be and
is hereby confirmed.
The two judgments appealed from are hereby affirmed, without special pronouncement of costs in this
instance.
Arellano, C.J., Torres, Carson and Trent, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-12105

January 30, 1960

TESTATE ESTATE OF C. O. BOHANAN, deceased. PHILIPPINE TRUST CO., executor-appellee,

vs.
MAGDALENA C. BOHANAN, EDWARD C. BOHANAN, and MARY LYDIA BOHANAN, oppositorsappellants.
Jose D. Cortes for appellants.
Ohnick, Velilla and Balonkita for appellee.
LABRADOR, J.:
Appeal against an order of the Court of First Instance of Manila, Hon. Ramon San Jose, presiding, dismissing
the objections filed by Magdalena C. Bohanan, Mary Bohanan and Edward Bohanan to the project of partition
submitted by the executor and approving the said project.
On April 24, 195 0, the Court of First Instance of Manila, Hon. Rafael Amparo, presiding, admitted to probate a
last will and testament of C. O. Bohanan, executed by him on April 23, 1944 in Manila. In the said order, the
court made the following findings:
According to the evidence of the opponents the testator was born in Nebraska and therefore a citizen of
that state, or at least a citizen of California where some of his properties are located. This contention in
untenable. Notwithstanding the long residence of the decedent in the Philippines, his stay here was
merely temporary, and he continued and remained to be a citizen of the United States and of the state
of his pertinent residence to spend the rest of his days in that state. His permanent residence or

domicile in the United States depended upon his personal intent or desire, and he selected Nevada as
his homicide and therefore at the time of his death, he was a citizen of that state. Nobody can choose
his domicile or permanent residence for him. That is his exclusive personal right.
Wherefore, the court finds that the testator C. O. Bohanan was at the time of his death a citizen of the
United States and of the State of Nevada and declares that his will and testament, Exhibit A, is fully in
accordance with the laws of the state of Nevada and admits the same to probate. Accordingly, the
Philippine Trust Company, named as the executor of the will, is hereby appointed to such executor and
upon the filing of a bond in the sum of P10,000.00, let letters testamentary be issued and after taking
the prescribed oath, it may enter upon the execution and performance of its trust. (pp. 26-27, R.O.A.).
It does not appear that the order granting probate was ever questions on appeal. The executor filed a project of
partition dated January 24, 1956, making, in accordance with the provisions of the will, the following
adjudications: (1) one-half of the residuary estate, to the Farmers and Merchants National Bank of Los
Angeles, California, U.S.A. in trust only for the benefit of testator's grandson Edward George Bohanan, which
consists of several mining companies; (2) the other half of the residuary estate to the testator's brother, F.L.
Bohanan, and his sister, Mrs. M. B. Galbraith, share and share alike. This consist in the same amount of cash
and of shares of mining stock similar to those given to testator's grandson; (3) legacies of P6,000 each to his
(testator) son, Edward Gilbert Bohana, and his daughter, Mary Lydia Bohanan, to be paid in three yearly
installments; (4) legacies to Clara Daen, in the amount of P10,000.00; Katherine Woodward, P2,000; Beulah
Fox, P4,000; and Elizabeth Hastings, P2,000;
It will be seen from the above that out of the total estate (after deducting administration expenses) of
P211,639.33 in cash, the testator gave his grandson P90,819.67 and one-half of all shares of stock of several
mining companies and to his brother and sister the same amount. To his children he gave a legacy of only
P6,000 each, or a total of P12,000.
The wife Magadalena C. Bohanan and her two children question the validity of the testamentary provisions
disposing of the estate in the manner above indicated, claiming that they have been deprived of the legitimate
that the laws of the form concede to them.
The first question refers to the share that the wife of the testator, Magdalena C. Bohanan, should be entitled to
received. The will has not given her any share in the estate left by the testator. It is argued that it was error for
the trial court to have recognized the Reno divorce secured by the testator from his Filipino wife Magdalena C.
Bohanan, and that said divorce should be declared a nullity in this jurisdiction, citing the case of
Querubin vs.Querubin, 87 Phil., 124, 47 Off. Gaz., (Sup, 12) 315, Cousins Hiz vs. Fluemer, 55 Phil., 852,
Ramirez vs. Gmur, 42 Phil., 855 and Gorayeb vs. Hashim, 50 Phil., 22. The court below refused to recognize
the claim of the widow on the ground that the laws of Nevada, of which the deceased was a citizen, allow him
to dispose of all of his properties without requiring him to leave any portion of his estate to his wife. Section
9905 of Nevada Compiled Laws of 1925 provides:
Every person over the age of eighteen years, of sound mind, may, by last will, dispose of all his or her
estate, real and personal, the same being chargeable with the payment of the testator's debts.
Besides, the right of the former wife of the testator, Magdalena C. Bohanan, to a share in the testator's estafa
had already been passed upon adversely against her in an order dated June 19, 1955, (pp. 155-159, Vol II
Records, Court of First Instance), which had become final, as Magdalena C. Bohanan does not appear to have
appealed therefrom to question its validity. On December 16, 1953, the said former wife filed a motion to
withdraw the sum of P20,000 from the funds of the estate, chargeable against her share in the conjugal
property, (See pp. 294-297, Vol. I, Record, Court of First Instance), and the court in its said error found that
there exists no community property owned by the decedent and his former wife at the time the decree of
divorce was issued. As already and Magdalena C. Bohanan may no longer question the fact contained therein,

i.e. that there was no community property acquired by the testator and Magdalena C. Bohanan during their
converture.
Moreover, the court below had found that the testator and Magdalena C. Bohanan were married on January
30, 1909, and that divorce was granted to him on May 20, 1922; that sometime in 1925, Magdalena C.
Bohanan married Carl Aaron and this marriage was subsisting at the time of the death of the testator. Since no
right to share in the inheritance in favor of a divorced wife exists in the State of Nevada and since the court
below had already found that there was no conjugal property between the testator and Magdalena C.
Bohanan, the latter can now have no longer claim to pay portion of the estate left by the testator.
The most important issue is the claim of the testator's children, Edward and Mary Lydia, who had received
legacies in the amount of P6,000 each only, and, therefore, have not been given their shares in the estate
which, in accordance with the laws of the forum, should be two-thirds of the estate left by the testator. Is the
failure old the testator to give his children two-thirds of the estate left by him at the time of his death, in
accordance with the laws of the forum valid?
The old Civil Code, which is applicable to this case because the testator died in 1944, expressly provides that
successional rights to personal property are to be earned by the national law of the person whose succession
is in question. Says the law on this point:
Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to
the extent of the successional rights and the intrinsic validity of their provisions, shall be regulated by
the national law of the person whose succession is in question, whatever may be the nature of the
property and the country in which it is found. (par. 2, Art. 10, old Civil Code, which is the same as par. 2
Art. 16, new Civil Code.)
In the proceedings for the probate of the will, it was found out and it was decided that the testator was a citizen
of the State of Nevada because he had selected this as his domicile and his permanent residence. (See
Decision dated April 24, 1950, supra). So the question at issue is whether the estementary dispositions,
especially hose for the children which are short of the legitime given them by the Civil Code of the Philippines,
are valid. It is not disputed that the laws of Nevada allow a testator to dispose of all his properties by will (Sec.
9905, Complied Nevada Laws of 1925, supra). It does not appear that at time of the hearing of the project of
partition, the above-quoted provision was introduced in evidence, as it was the executor's duly to do. The law
of Nevada, being a foreign law can only be proved in our courts in the form and manner provided for by our
Rules, which are as follows:
SEC. 41. Proof of public or official record. An official record or an entry therein, when admissible for
any purpose, may be evidenced by an official publication thereof or by a copy tested by the officer
having the legal custody of he record, or by his deputy, and accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the custody. . . . (Rule 123).
We have, however, consulted the records of the case in the court below and we have found that during the
hearing on October 4, 1954 of the motion of Magdalena C. Bohanan for withdrawal of P20,000 as her share,
the foreign law, especially Section 9905, Compiled Nevada Laws. was introduced in evidence by appellant's
(herein) counsel as Exhibits "2" (See pp. 77-79, VOL. II, and t.s.n. pp. 24-44, Records, Court of First Instance).
Again said laws presented by the counsel for the executor and admitted by the Court as Exhibit "B" during the
hearing of the case on January 23, 1950 before Judge Rafael Amparo (se Records, Court of First Instance,
Vol. 1).
In addition, the other appellants, children of the testator, do not dispute the above-quoted provision of the laws
of the State of Nevada. Under all the above circumstances, we are constrained to hold that the pertinent law of

Nevada, especially Section 9905 of the Compiled Nevada Laws of 1925, can be taken judicial notice of by us,
without proof of such law having been offered at the hearing of the project of partition.
As in accordance with Article 10 of the old Civil Code, the validity of testamentary dispositions are to be
governed by the national law of the testator, and as it has been decided and it is not disputed that the national
law of the testator is that of the State of Nevada, already indicated above, which allows a testator to dispose of
all his property according to his will, as in the case at bar, the order of the court approving the project of
partition made in accordance with the testamentary provisions, must be, as it is hereby affirmed, with costs
against appellants.
Paras, Bengzon, C.J., Padilla, Bautista Angelo and Endencia, JJ., concur.
Barrera, J., concurs in the result.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-23678

June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased.

PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for oppositors appellants.
Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.
BENGZON, J.P., J.:

This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of
Manila dated April 30, 1964, approving the project of partition filed by the executor in Civil Case No. 37089
therein.1wph1.t
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife,
Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who predeceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet
Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy
Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma
Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes,
obligations, and expenses of administration are paid for, his distributable estate should be divided, in trust, in
the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three
illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each and (c)
after the foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his
first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman,
Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.1wph1.t
Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His will was
admitted to probate in the Court of First Instance of Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the
amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate
children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00
each in satisfaction of their respective legacies, or a total of P120,000.00, which it released from time to time
according as the lower court approved and allowed the various motions or petitions filed by the latter three
requesting partial advances on account of their respective legacies.
On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's
Final Account, Report of Administration and Project of Partition" wherein it reported, inter alia, the satisfaction
of the legacy of Mary E. Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the
legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or
a total of P120,000.00. In the project of partition, the executor pursuant to the "Twelfth" clause of the
testator's Last Will and Testament divided the residuary estate into seven equal portions for the benefit of
the testator's seven legitimate children by his first and second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the
project of partition on the ground that they were deprived of their legitimes as illegitimate children and,
therefore, compulsory heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the
registry receipt submitted on April 27, 1964 by the executor.1
After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30,
1964, issued an order overruling the oppositions and approving the executor's final account, report and
administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied the national law of the
decedent, which in this case is Texas law, which did not provide for legitimes.

Their respective motions for reconsideration having been denied by the lower court on June 11, 1964,
oppositors-appellants appealed to this Court to raise the issue of which law must apply Texas law or
Philippine law.
In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this
Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the
decedent is a national of one country, and a domicile of another. In the present case, it is not disputed that the
decedent was both a national of Texas and a domicile thereof at the time of his death.2 So that even assuming
Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern, the
same would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law.
Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the application of
the law of the place where the properties are situated, renvoi would arise, since the properties here involved
are found in the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should
not be presumed different from ours.3 Appellants' position is therefore not rested on the doctrine of renvoi. As
stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their case falls
under the circumstances mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil
Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in
intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of
successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They
provide that
ART. 16. Real property as well as personal property is subject to the law of the country where it is
situated.
However, intestate and testamentary successions, both with respect to the order of succession and to
the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession is under consideration, whatever may he
the nature of the property and regardless of the country wherein said property may be found.
ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.
Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that
Prohibitive laws concerning persons, their acts or property, and those which have for their object public
order, public policy and good customs shall not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions agreed upon in a foreign country.
prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct. Precisely,
Congressdeleted the phrase, "notwithstanding the provisions of this and the next preceding article" when they
incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without substantial
change the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must have been their
purpose to make the second paragraph of Art. 16 a specific provision in itself which must be applied in testate
and intestate succession. As further indication of this legislative intent, Congress added a new provision, under
Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent.
It is therefore evident that whatever public policy or good customs may be involved in our System of legitimes,
Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically
chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific
provisions must prevail over general ones.

Appellants would also point out that the decedent executed two wills one to govern his Texas estate and the
other his Philippine estate arguing from this that he intended Philippine law to govern his Philippine estate.
Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the
law, for as this Court ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect
that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal
and void, for his national law cannot be ignored in regard to those matters that Article 10 now Article 16 of
the Civil Code states said national law should govern.
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under
the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision
of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on
legitimes cannot be applied to the testacy of Amos G. Bellis.
Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-16749

January 31, 1963

IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN, DECEASED.

ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the deceased, Executor and Heirappellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-appellant.

M. R. Sotelo for executor and heir-appellees.

Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.
LABRADOR, J.:
This is an appeal from a decision of the Court of First Instance of Davao, Hon. Vicente N. Cusi, Jr., presiding,
in Special Proceeding No. 622 of said court, dated September 14, 1949, approving among things the final
accounts of the executor, directing the executor to reimburse Maria Lucy Christensen the amount of P3,600
paid by her to Helen Christensen Garcia as her legacy, and declaring Maria Lucy Christensen entitled to the
residue of the property to be enjoyed during her lifetime, and in case of death without issue, one-half of said
residue to be payable to Mrs. Carrie Louise C. Borton, etc., in accordance with the provisions of the will of the
testator Edward E. Christensen. The will was executed in Manila on March 5, 1951 and contains the following
provisions:
3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (now Mrs. Bernard
Daney), who was born in the Philippines about twenty-eight years ago, and who is now residing at No.
665 Rodger Young Village, Los Angeles, California, U.S.A.
4. I further declare that I now have no living ascendants, and no descendants except my above named
daughter, MARIA LUCY CHRISTENSEN DANEY.
xxx

xxx

xxx

7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo Garcia,
about eighteen years of age and who, notwithstanding the fact that she was baptized Christensen, is
not in any way related to me, nor has she been at any time adopted by me, and who, from all
information I have now resides in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND SIX
HUNDRED PESOS (P3,600.00), Philippine Currency the same to be deposited in trust for the said
Maria Helen Christensen with the Davao Branch of the Philippine National Bank, and paid to her at the
rate of One Hundred Pesos (P100.00), Philippine Currency per month until the principal thereof as well
as any interest which may have accrued thereon, is exhausted..
xxx

xxx

xxx

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY
CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing as aforesaid at No. 665 Rodger Young
Village, Los Angeles, California, U.S.A., all the income from the rest, remainder, and residue of my
property and estate, real, personal and/or mixed, of whatsoever kind or character, and wheresoever
situated, of which I may be possessed at my death and which may have come to me from any source
whatsoever, during her lifetime: ....
It is in accordance with the above-quoted provisions that the executor in his final account and project of
partition ratified the payment of only P3,600 to Helen Christensen Garcia and proposed that the residue of the
estate be transferred to his daughter, Maria Lucy Christensen.
Opposition to the approval of the project of partition was filed by Helen Christensen Garcia, insofar as it
deprives her (Helen) of her legitime as an acknowledged natural child, she having been declared by Us in G.R.
Nos. L-11483-84 an acknowledged natural child of the deceased Edward E. Christensen. The legal grounds of
opposition are (a) that the distribution should be governed by the laws of the Philippines, and (b) that said
order of distribution is contrary thereto insofar as it denies to Helen Christensen, one of two acknowledged
natural children, one-half of the estate in full ownership. In amplification of the above grounds it was alleged
that the law that should govern the estate of the deceased Christensen should not be the internal law of

California alone, but the entire law thereof because several foreign elements are involved, that the forum is the
Philippines and even if the case were decided in California, Section 946 of the California Civil Code, which
requires that the domicile of the decedent should apply, should be applicable. It was also alleged that Maria
Helen Christensen having been declared an acknowledged natural child of the decedent, she is deemed for all
purposes legitimate from the time of her birth.
The court below ruled that as Edward E. Christensen was a citizen of the United States and of the State of
California at the time of his death, the successional rights and intrinsic validity of the provisions in his will are to
be governed by the law of California, in accordance with which a testator has the right to dispose of his
property in the way he desires, because the right of absolute dominion over his property is sacred and
inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877, 176 P. 2d 952, and In re Kaufman, 117 Cal. 286, 49
Pac. 192, cited in page 179, Record on Appeal). Oppositor Maria Helen Christensen, through counsel, filed
various motions for reconsideration, but these were denied. Hence, this appeal.
The most important assignments of error are as follows:
I
THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE SUPREME COURT
THAT HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF EDWARD E. CHRISTENSEN AND,
CONSEQUENTLY, IN DEPRIVING HER OF HER JUST SHARE IN THE INHERITANCE.
II
THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO RECOGNIZE THE
EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES CALLING FOR THE
APPLICATION OF INTERNAL LAW.
III
THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER INTERNATIONAL LAW,
PARTICULARLY UNDER THE RENVOI DOCTRINE, THE INTRINSIC VALIDITY OF THE TESTAMENTARY
DISPOSITION OF THE DISTRIBUTION OF THE ESTATE OF THE DECEASED EDWARD E. CHRISTENSEN
SHOULD BE GOVERNED BY THE LAWS OF THE PHILIPPINES.
IV
THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF DISTRIBUTION SUBMITTED
BY THE EXECUTOR IS CONTRARY TO THE PHILIPPINE LAWS.
V
THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE LAWS HELEN
CHRISTENSEN GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE ESTATE IN FULL OWNERSHIP.
There is no question that Edward E. Christensen was a citizen of the United States and of the State of
California at the time of his death. But there is also no question that at the time of his death he was domiciled
in the Philippines, as witness the following facts admitted by the executor himself in appellee's brief:
In the proceedings for admission of the will to probate, the facts of record show that the deceased
Edward E. Christensen was born on November 29, 1875 in New York City, N.Y., U.S.A.; his first arrival
in the Philippines, as an appointed school teacher, was on July 1, 1901, on board the U.S. Army

Transport "Sheridan" with Port of Embarkation as the City of San Francisco, in the State of California,
U.S.A. He stayed in the Philippines until 1904.
In December, 1904, Mr. Christensen returned to the United States and stayed there for the following
nine years until 1913, during which time he resided in, and was teaching school in Sacramento,
California.
Mr. Christensen's next arrival in the Philippines was in July of the year 1913. However, in 1928, he
again departed the Philippines for the United States and came back here the following year, 1929.
Some nine years later, in 1938, he again returned to his own country, and came back to the Philippines
the following year, 1939.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved
by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case
not covered by this stipulation of facts. 1wph1.t
Being an American citizen, Mr. Christensen was interned by the Japanese Military Forces in the
Philippines during World War II. Upon liberation, in April 1945, he left for the United States but returned
to the Philippines in December, 1945. Appellees Collective Exhibits "6", CFI Davao, Sp. Proc. 622, as
Exhibits "AA", "BB" and "CC-Daney"; Exhs. "MM", "MM-l", "MM-2-Daney" and p. 473, t.s.n., July 21,
1953.)
In April, 1951, Edward E. Christensen returned once more to California shortly after the making of his
last will and testament (now in question herein) which he executed at his lawyers' offices in Manila on
March 5, 1951. He died at the St. Luke's Hospital in the City of Manila on April 30, 1953. (pp. 2-3)
In arriving at the conclusion that the domicile of the deceased is the Philippines, we are persuaded by the fact
that he was born in New York, migrated to California and resided there for nine years, and since he came to
the Philippines in 1913 he returned to California very rarely and only for short visits (perhaps to relatives), and
considering that he appears never to have owned or acquired a home or properties in that state, which would
indicate that he would ultimately abandon the Philippines and make home in the State of California.
Sec. 16. Residence is a term used with many shades of meaning from mere temporary presence to the
most permanent abode. Generally, however, it is used to denote something more than mere physical
presence. (Goodrich on Conflict of Laws, p. 29)
As to his citizenship, however, We find that the citizenship that he acquired in California when he resided in
Sacramento, California from 1904 to 1913, was never lost by his stay in the Philippines, for the latter was a
territory of the United States (not a state) until 1946 and the deceased appears to have considered himself as
a citizen of California by the fact that when he executed his will in 1951 he declared that he was a citizen of
that State; so that he appears never to have intended to abandon his California citizenship by acquiring
another. This conclusion is in accordance with the following principle expounded by Goodrich in his Conflict of
Laws.
The terms "'residence" and "domicile" might well be taken to mean the same thing, a place of
permanent abode. But domicile, as has been shown, has acquired a technical meaning. Thus one may
be domiciled in a place where he has never been. And he may reside in a place where he has no
domicile. The man with two homes, between which he divides his time, certainly resides in each one,
while living in it. But if he went on business which would require his presence for several weeks or
months, he might properly be said to have sufficient connection with the place to be called a resident. It
is clear, however, that, if he treated his settlement as continuing only for the particular business in hand,
not giving up his former "home," he could not be a domiciled New Yorker. Acquisition of a domicile of

choice requires the exercise of intention as well as physical presence. "Residence simply requires
bodily presence of an inhabitant in a given place, while domicile requires bodily presence in that place
and also an intention to make it one's domicile." Residence, however, is a term used with many shades
of meaning, from the merest temporary presence to the most permanent abode, and it is not safe to
insist that any one use et the only proper one. (Goodrich, p. 29)
The law that governs the validity of his testamentary dispositions is defined in Article 16 of the Civil Code of the
Philippines, which is as follows:
ART. 16. Real property as well as personal property is subject to the law of the country where it is
situated.
However, intestate and testamentary successions, both with respect to the order of succession and to
the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession is under consideration, whatever may be
the nature of the property and regardless of the country where said property may be found.
The application of this article in the case at bar requires the determination of the meaning of the term "national
law" is used therein.
There is no single American law governing the validity of testamentary provisions in the United States, each
state of the Union having its own private law applicable to its citizens only and in force only within the state.
The "national law" indicated in Article 16 of the Civil Code above quoted can not, therefore, possibly mean or
apply to any general American law. So it can refer to no other than the private law of the State of California.
The next question is: What is the law in California governing the disposition of personal property? The decision
of the court below, sustains the contention of the executor-appellee that under the California Probate Code, a
testator may dispose of his property by will in the form and manner he desires, citing the case of Estate of
McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952. But appellant invokes the provisions of Article 946 of the Civil
Code of California, which is as follows:
If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow
the person of its owner, and is governed by the law of his domicile.
The existence of this provision is alleged in appellant's opposition and is not denied. We have checked it in the
California Civil Code and it is there. Appellee, on the other hand, relies on the case cited in the decision and
testified to by a witness. (Only the case of Kaufman is correctly cited.) It is argued on executor's behalf that as
the deceased Christensen was a citizen of the State of California, the internal law thereof, which is that given in
the abovecited case, should govern the determination of the validity of the testamentary provisions of
Christensen's will, such law being in force in the State of California of which Christensen was a citizen.
Appellant, on the other hand, insists that Article 946 should be applicable, and in accordance therewith and
following the doctrine of therenvoi, the question of the validity of the testamentary provision in question should
be referred back to the law of the decedent's domicile, which is the Philippines.
The theory of doctrine of renvoi has been defined by various authors, thus:
The problem has been stated in this way: "When the Conflict of Laws rule of the forum refers a jural
matter to a foreign law for decision, is the reference to the purely internal rules of law of the foreign
system; i.e., to the totality of the foreign law minus its Conflict of Laws rules?"
On logic, the solution is not an easy one. The Michigan court chose to accept the renvoi, that is, applied
the Conflict of Laws rule of Illinois which referred the matter back to Michigan law. But once having

determined the the Conflict of Laws principle is the rule looked to, it is difficult to see why the reference
back should not have been to Michigan Conflict of Laws. This would have resulted in the "endless chain
of references" which has so often been criticized be legal writers. The opponents of the renvoi would
have looked merely to the internal law of Illinois, thus rejecting the renvoi or the reference back. Yet
there seems no compelling logical reason why the original reference should be the internal law rather
than to the Conflict of Laws rule. It is true that such a solution avoids going on a merry-go-round, but
those who have accepted the renvoitheory avoid this inextricabilis circulas by getting off at the second
reference and at that point applying internal law. Perhaps the opponents of the renvoi are a bit more
consistent for they look always to internal law as the rule of reference.
Strangely enough, both the advocates for and the objectors to the renvoi plead that greater uniformity
will result from adoption of their respective views. And still more strange is the fact that the only way to
achieve uniformity in this choice-of-law problem is if in the dispute the two states whose laws form the
legal basis of the litigation disagree as to whether the renvoi should be accepted. If both reject, or both
accept the doctrine, the result of the litigation will vary with the choice of the forum. In the case stated
above, had the Michigan court rejected the renvoi, judgment would have been against the woman; if the
suit had been brought in the Illinois courts, and they too rejected the renvoi, judgment would be for the
woman. The same result would happen, though the courts would switch with respect to which would
hold liability, if both courts accepted the renvoi.
The Restatement accepts the renvoi theory in two instances: where the title to land is in question, and
where the validity of a decree of divorce is challenged. In these cases the Conflict of Laws rule of the
situs of the land, or the domicile of the parties in the divorce case, is applied by the forum, but any
further reference goes only to the internal law. Thus, a person's title to land, recognized by the situs, will
be recognized by every court; and every divorce, valid by the domicile of the parties, will be valid
everywhere. (Goodrich, Conflict of Laws, Sec. 7, pp. 13-14.)
X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable property in
Massachusetts, England, and France. The question arises as to how this property is to be distributed
among X's next of kin.
Assume (1) that this question arises in a Massachusetts court. There the rule of the conflict of laws as
to intestate succession to movables calls for an application of the law of the deceased's last domicile.
Since by hypothesis X's last domicile was France, the natural thing for the Massachusetts court to do
would be to turn to French statute of distributions, or whatever corresponds thereto in French law, and
decree a distribution accordingly. An examination of French law, however, would show that if a French
court were called upon to determine how this property should be distributed, it would refer the
distribution to the national law of the deceased, thus applying the Massachusetts statute of
distributions. So on the surface of things the Massachusetts court has open to it alternative course of
action: (a) either to apply the French law is to intestate succession, or (b) to resolve itself into a French
court and apply the Massachusetts statute of distributions, on the assumption that this is what a French
court would do. If it accepts the so-called renvoidoctrine, it will follow the latter course, thus applying its
own law.
This is one type of renvoi. A jural matter is presented which the conflict-of-laws rule of the forum refers
to a foreign law, the conflict-of-laws rule of which, in turn, refers the matter back again to the law of the
forum. This is renvoi in the narrower sense. The German term for this judicial process is
'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp. 523-571.)
After a decision has been arrived at that a foreign law is to be resorted to as governing a particular
case, the further question may arise: Are the rules as to the conflict of laws contained in such foreign
law also to be resorted to? This is a question which, while it has been considered by the courts in but a

few instances, has been the subject of frequent discussion by textwriters and essayists; and the
doctrine involved has been descriptively designated by them as the "Renvoyer" to send back, or the
"Ruchversweisung", or the "Weiterverweisung", since an affirmative answer to the question postulated
and the operation of the adoption of the foreign law in toto would in many cases result in returning the
main controversy to be decided according to the law of the forum. ... (16 C.J.S. 872.)
Another theory, known as the "doctrine of renvoi", has been advanced. The theory of the doctrine
of renvoiis that the court of the forum, in determining the question before it, must take into account the
whole law of the other jurisdiction, but also its rules as to conflict of laws, and then apply the law to the
actual question which the rules of the other jurisdiction prescribe. This may be the law of the forum. The
doctrine of therenvoi has generally been repudiated by the American authorities. (2 Am. Jur. 296)
The scope of the theory of renvoi has also been defined and the reasons for its application in a country
explained by Prof. Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-1918, pp. 529-531. The
pertinent parts of the article are quoted herein below:
The recognition of the renvoi theory implies that the rules of the conflict of laws are to be understood as
incorporating not only the ordinary or internal law of the foreign state or country, but its rules of the
conflict of laws as well. According to this theory 'the law of a country' means the whole of its law.
xxx

xxx

xxx

Von Bar presented his views at the meeting of the Institute of International Law, at Neuchatel, in 1900,
in the form of the following theses:
(1) Every court shall observe the law of its country as regards the application of foreign laws.
(2) Provided that no express provision to the contrary exists, the court shall respect:
(a) The provisions of a foreign law which disclaims the right to bind its nationals abroad as
regards their personal statute, and desires that said personal statute shall be determined by the
law of the domicile, or even by the law of the place where the act in question occurred.
(b) The decision of two or more foreign systems of law, provided it be certain that one of them is
necessarily competent, which agree in attributing the determination of a question to the same
system of law.
xxx

xxx

xxx

If, for example, the English law directs its judge to distribute the personal estate of an Englishman who
has died domiciled in Belgium in accordance with the law of his domicile, he must first inquire whether
the law of Belgium would distribute personal property upon death in accordance with the law of
domicile, and if he finds that the Belgian law would make the distribution in accordance with the law of
nationality that is the English law he must accept this reference back to his own law.
We note that Article 946 of the California Civil Code is its conflict of laws rule, while the rule applied in In re
Kaufman, Supra, its internal law. If the law on succession and the conflict of laws rules of California are to be
enforced jointly, each in its own intended and appropriate sphere, the principle cited In re Kaufman should
apply to citizens living in the State, but Article 946 should apply to such of its citizens as are not domiciled in
California but in other jurisdictions. The rule laid down of resorting to the law of the domicile in the
determination of matters with foreign element involved is in accord with the general principle of American law
that the domiciliary law should govern in most matters or rights which follow the person of the owner.

When a man dies leaving personal property in one or more states, and leaves a will directing the
manner of distribution of the property, the law of the state where he was domiciled at the time of his
death will be looked to in deciding legal questions about the will, almost as completely as the law of
situs is consulted in questions about the devise of land. It is logical that, since the domiciliary rules
control devolution of the personal estate in case of intestate succession, the same rules should
determine the validity of an attempted testamentary dispostion of the property. Here, also, it is not that
the domiciliary has effect beyond the borders of the domiciliary state. The rules of the domicile are
recognized as controlling by the Conflict of Laws rules at the situs property, and the reason for the
recognition as in the case of intestate succession, is the general convenience of the doctrine. The New
York court has said on the point: 'The general principle that a dispostiton of a personal property, valid at
the domicile of the owner, is valid anywhere, is one of the universal application. It had its origin in that
international comity which was one of the first fruits of civilization, and it this age, when business
intercourse and the process of accumulating property take but little notice of boundary lines, the
practical wisdom and justice of the rule is more apparent than ever. (Goodrich, Conflict of Laws, Sec.
164, pp. 442-443.)
Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as the national law is the
internal law of California. But as above explained the laws of California have prescribed two sets of laws for its
citizens, one for residents therein and another for those domiciled in other jurisdictions. Reason demands that
We should enforce the California internal law prescribed for its citizens residing therein, and enforce the
conflict of laws rules for the citizens domiciled abroad. If we must enforce the law of California as in comity we
are bound to go, as so declared in Article 16 of our Civil Code, then we must enforce the law of California in
accordance with the express mandate thereof and as above explained, i.e., apply the internal law for residents
therein, and its conflict-of-laws rule for those domiciled abroad.
It is argued on appellees' behalf that the clause "if there is no law to the contrary in the place where the
property is situated" in Sec. 946 of the California Civil Code refers to Article 16 of the Civil Code of the
Philippines and that the law to the contrary in the Philippines is the provision in said Article 16 that the national
law of the deceased should govern. This contention can not be sustained. As explained in the various
authorities cited above the national law mentioned in Article 16 of our Civil Code is the law on conflict of laws in
the California Civil Code, i.e., Article 946, which authorizes the reference or return of the question to the law of
the testator's domicile. The conflict of laws rule in California, Article 946, Civil Code, precisely refers back the
case, when a decedent is not domiciled in California, to the law of his domicile, the Philippines in the case at
bar. The court of the domicile can not and should not refer the case back to California; such action would leave
the issue incapable of determination because the case will then be like a football, tossed back and forth
between the two states, between the country of which the decedent was a citizen and the country of his
domicile. The Philippine court must apply its own law as directed in the conflict of laws rule of the state of the
decedent, if the question has to be decided, especially as the application of the internal law of California
provides no legitime for children while the Philippine law, Arts. 887(4) and 894, Civil Code of the Philippines,
makes natural children legally acknowledged forced heirs of the parent recognizing them.
The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40 Phil. 105; Miciano vs.
Brimo, 50 Phil. 867; Babcock Templeton vs. Rider Babcock, 52 Phil. 130; and Gibbs vs. Government, 59 Phil.
293.) cited by appellees to support the decision can not possibly apply in the case at bar, for two important
reasons, i.e., the subject in each case does not appear to be a citizen of a state in the United States but with
domicile in the Philippines, and it does not appear in each case that there exists in the state of which the
subject is a citizen, a law similar to or identical with Art. 946 of the California Civil Code.
We therefore find that as the domicile of the deceased Christensen, a citizen of California, is the Philippines,
the validity of the provisions of his will depriving his acknowledged natural child, the appellant, should be
governed by the Philippine Law, the domicile, pursuant to Art. 946 of the Civil Code of California, not by the
internal law of California..

WHEREFORE, the decision appealed from is hereby reversed and the case returned to the lower court with
instructions that the partition be made as the Philippine law on succession provides. Judgment reversed, with
costs against appellees.
Padilla, Bautista Angelo, Concepcion, Reyes, Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.
Bengzon, C.J., took no part.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 142820

June 20, 2003

WOLFGANG O. ROEHR, petitioner,

vs.
MARIA CARMEN D. RODRIGUEZ, HON. JUDGE JOSEFINA GUEVARA-SALONGA, Presiding Judge of
Makati RTC, Branch 149, respondents.
QUISUMBING, J.:
At the core of the present controversy are issues of (a) grave abuse of discretion allegedly committed by public
respondent and (b) lack of jurisdiction of the regional trial court, in matters that spring from a divorce decree
obtained abroad by petitioner.
In this special civil action for certiorari, petitioner assails (a) the order1 dated September 30, 1999 of public
respondent Judge Josefina Guevara-Salonga, Presiding Judge of Makati Regional Trial Court,2 Branch 149, in
Civil Case No. 96-1389 for declaration of nullity of marriage, and (b) the order3 dated March 31, 2000 denying
his motion for reconsideration. The assailed orders partially set aside the trial courts order dismissing Civil
Case No. 96-1389, for the purpose of resolving issues relating to the property settlement of the spouses and
the custody of their children.
Petitioner Wolfgang O. Roehr, a German citizen and resident of Germany, married private respondent Carmen
Rodriguez, a Filipina, on December 11, 1980 in Hamburg, Germany. Their marriage was subsequently ratified
on February 14, 1981 in Tayasan, Negros Oriental.4 Out of their union were born Carolynne and Alexandra
Kristine on November 18, 1981 and October 25, 1987, respectively.
On August 28, 1996, private respondent filed a petition5 for declaration of nullity of marriage before the
Regional Trial Court (RTC) of Makati City. On February 6, 1997, petitioner filed a motion to dismiss,6 but it was
denied by the trial court in its order7 dated May 28, 1997.
On June 5, 1997, petitioner filed a motion for reconsideration, but was also denied in an order8 dated August
13, 1997. On September 5, 1997, petitioner filed a petition for certiorari with the Court of Appeals. On
November 27, 1998, the appellate court denied the petition and remanded the case to the RTC.
Meanwhile, petitioner obtained a decree of divorce from the Court of First Instance of Hamburg-Blankenese,
promulgated on December 16, 1997.
The decree provides in part:

[T]he Court of First Instance, Hamburg-Blankenese, Branch 513, has ruled through Judge van Buiren of
the Court of First Instance on the basis of the oral proceedings held on 4 Nov. 1997:
The marriage of the Parties contracted on 11 December 1980 before the Civil Registrar of HamburgAltona is hereby dissolved.
The parental custody for the children
Carolynne Roehr, born 18 November 1981
Alexandra Kristine Roehr, born on 25 October 1987
is granted to the father.
The litigation expenses shall be assumed by the Parties.9
In view of said decree, petitioner filed a Second Motion to Dismiss on May 20, 1999 on the ground that the trial
court had no jurisdiction over the subject matter of the action or suit as a decree of divorce had already been
promulgated dissolving the marriage of petitioner and private respondent.
On July 14, 1999, Judge Guevara-Salonga issued an order granting petitioners motion to dismiss. Private
respondent filed a Motion for Partial Reconsideration, with a prayer that the case proceed for the purpose of
determining the issues of custody of children and the distribution of the properties between petitioner and
private respondent.
On August 18, 1999, an Opposition to the Motion for Partial Reconsideration was filed by the petitioner on the
ground that there is nothing to be done anymore in the instant case as the marital tie between petitioner
Wolfgang Roehr and respondent Ma. Carmen D. Rodriguez had already been severed by the decree of
divorce promulgated by the Court of First Instance of Hamburg, Germany on December 16, 1997 and in view
of the fact that said decree of divorce had already been recognized by the RTC in its order of July 14, 1999,
through the implementation of the mandate of Article 26 of the Family Code,10 endowing the petitioner with the
capacity to remarry under the Philippine law.
On September 30, 1999, respondent judge issued the assailed order partially setting aside her order dated
July 14, 1999 for the purpose of tackling the issues of property relations of the spouses as well as support and
custody of their children. The pertinent portion of said order provides:
Acting on the Motion for Partial Reconsideration of the Order dated July 14, 1999 filed by petitioner thru
counsel which was opposed by respondent and considering that the second paragraph of Article 26 of
the Family Code was included as an amendment thru Executive Order 227, to avoid the absurd
situation of a Filipino as being still married to his or her alien spouse though the latter is no longer
married to the Filipino spouse because he/she had obtained a divorce abroad which is recognized by
his/her national law, and considering further the effects of the termination of the marriage under Article
43 in relation to Article 50 and 52 of the same Code, which include the dissolution of the property
relations of the spouses, and the support and custody of their children, the Order dismissing this case
is partially set aside with respect to these matters which may be ventilated in this Court.
SO ORDERED.11 (Emphasis supplied.)
Petitioner filed a timely motion for reconsideration on October 19, 1999, which was denied by respondent judge
in an order dated March 31, 2000.12

Petitioner ascribes lack of jurisdiction of the trial court and grave abuse of discretion on the part of respondent
judge. He cites as grounds for his petition the following:
1. Partially setting aside the order dated July 14, 1999 dismissing the instant case is not allowed by
1997 Rules of Civil Procedure.13
2. Respondent Maria Carmen Rodriguez by her motion for Partial Reconsideration had recognized and
admitted the Divorce Decision obtained by her ex-husband in Hamburg, Germany.14
3. There is nothing left to be tackled by the Honorable Court as there are no conjugal assets alleged in
the Petition for Annulment of Marriage and in the Divorce petition, and the custody of the children had
already been awarded to Petitioner Wolfgang Roehr.15
Pertinent in this case before us are the following issues:
1. Whether or not respondent judge gravely abused her discretion in issuing her order dated September
30, 1999, which partially modified her order dated July 14, 1999; and
2. Whether or not respondent judge gravely abused her discretion when she assumed and retained
jurisdiction over the present case despite the fact that petitioner has already obtained a divorce decree
from a German court.
On the first issue, petitioner asserts that the assailed order of respondent judge is completely inconsistent with
her previous order and is contrary to Section 3, Rule 16, Rules of Civil Procedure, which provides:
Sec. 3. Resolution of motion - After the hearing, the court may dismiss the action or claim, deny the
motion, or order the amendment of the pleading.
The court shall not defer the resolution of the motion for the reason that the ground relied upon is not
indubitable.
In every case, the resolution shall state clearly and distinctly the reasons therefor. (Emphasis supplied.)
Petitioner avers that a courts action on a motion is limited to dismissing the action or claim, denying the
motion, or ordering the amendment of the pleading.
Private respondent, on her part, argues that the RTC can validly reconsider its order dated July 14, 1999
because it had not yet attained finality, given the timely filing of respondents motion for reconsideration.
Pertinent to this issue is Section 3 in relation to Section 7, Rule 37 of the 1997 Rules of Civil Procedure, which
provides:
Sec. 3. Action upon motion for new trial or reconsideration.The trial court may set aside the judgment
or final order and grant a new trial, upon such terms as may be just, or may deny the motion. If the
court finds that excessive damages have been awarded or that the judgment or final order is contrary
to the evidence or law, it may amend such judgment or final order accordingly.
Sec. 7. Partial new trial or reconsideration.If the grounds for a motion under this Rule appear to the
court to affect the issues as to only a part, or less than all of the matters in controversy, or only one, or
less than all, of the parties to it, the court may order a new trial or grant reconsideration as to such
issues if severable without interfering with the judgment or final order upon the rest. (Emphasis
supplied.)

It is clear from the foregoing rules that a judge can order a partial reconsideration of a case that has not yet
attained finality. Considering that private respondent filed a motion for reconsideration within the reglementary
period, the trial court's decision of July 14, 1999 can still be modified. Moreover, in Saado v. Court of
Appeals,16we held that the court could modify or alter a judgment even after the same has become executory
whenever circumstances transpire rendering its decision unjust and inequitable, as where certain facts and
circumstances justifying or requiring such modification or alteration transpired after the judgment has become
final and executory17 and when it becomes imperative in the higher interest of justice or when supervening
events warrant it.18 In our view, there are even more compelling reasons to do so when, as in this case,
judgment has not yet attained finality.
Anent the second issue, petitioner claims that respondent judge committed grave abuse of discretion when she
partially set aside her order dated July 14, 1999, despite the fact that petitioner has already obtained a divorce
decree from the Court of First Instance of Hamburg, Germany.
In Garcia v. Recio,19 Van Dorn v. Romillo, Jr.,20 and Llorente v. Court of Appeals,21 we consistently held that a
divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid
according to the national law of the foreigner. Relevant to the present case is Pilapil v. Ibay-Somera,22 where
this Court specifically recognized the validity of a divorce obtained by a German citizen in his country, the
Federal Republic of Germany. We held in Pilapil that a foreign divorce and its legal effects may be recognized
in the Philippines insofar as respondent is concerned in view of the nationality principle in our civil law on the
status of persons.
In this case, the divorce decree issued by the German court dated December 16, 1997 has not been
challenged by either of the parties. In fact, save for the issue of parental custody, even the trial court
recognized said decree to be valid and binding, thereby endowing private respondent the capacity to remarry.
Thus, the present controversy mainly relates to the award of the custody of their two children, Carolynne and
Alexandra Kristine, to petitioner.
As a general rule, divorce decrees obtained by foreigners in other countries are recognizable in our jurisdiction,
but the legal effects thereof, e.g. on custody, care and support of the children, must still be determined by our
courts.23 Before our courts can give the effect of res judicata to a foreign judgment, such as the award of
custody to petitioner by the German court, it must be shown that the parties opposed to the judgment had been
given ample opportunity to do so on grounds allowed under Rule 39, Section 50 of the Rules of Court (now
Rule 39, Section 48, 1997 Rules of Civil Procedure), to wit:
SEC. 50. Effect of foreign judgments. - The effect of a judgment of a tribunal of a foreign country,
having jurisdiction to pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title to the thing;
(b) In case of a judgment against a person, the judgment is presumptive evidence of a right as between
the parties and their successors in interest by a subsequent title; but the judgment may be repelled by
evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or
fact.
It is essential that there should be an opportunity to challenge the foreign judgment, in order for the court in this
jurisdiction to properly determine its efficacy. In this jurisdiction, our Rules of Court clearly provide that with
respect to actions in personam, as distinguished from actions in rem, a foreign judgment merely
constitutes prima facie evidence of the justness of the claim of a party and, as such, is subject to proof to the
contrary.24

In the present case, it cannot be said that private respondent was given the opportunity to challenge the
judgment of the German court so that there is basis for declaring that judgment as res judicata with regard to
the rights of petitioner to have parental custody of their two children. The proceedings in the German court
were summary. As to what was the extent of private respondents participation in the proceedings in the
German court, the records remain unclear. The divorce decree itself states that neither has she commented on
the proceedings25 nor has she given her opinion to the Social Services Office.26 Unlike petitioner who was
represented by two lawyers, private respondent had no counsel to assist her in said proceedings.27 More
importantly, the divorce judgment was issued to petitioner by virtue of the German Civil Code provision to the
effect that when a couple lived separately for three years, the marriage is deemed irrefutably dissolved. The
decree did not touch on the issue as to who the offending spouse was. Absent any finding that private
respondent is unfit to obtain custody of the children, the trial court was correct in setting the issue for hearing to
determine the issue of parental custody, care, support and education mindful of the best interests of the
children. This is in consonance with the provision in the Child and Youth Welfare Code that the childs welfare
is always the paramount consideration in all questions concerning his care and custody. 28
On the matter of property relations, petitioner asserts that public respondent exceeded the bounds of her
jurisdiction when she claimed cognizance of the issue concerning property relations between petitioner and
private respondent. Private respondent herself has admitted in Par. 14 of her petition for declaration of nullity of
marriage dated August 26, 1996 filed with the RTC of Makati, subject of this case, that: "[p]etitioner and
respondent have not acquired any conjugal or community property nor have they incurred any debts during
their marriage."29 Herein petitioner did not contest this averment. Basic is the rule that a court shall grant relief
warranted by the allegations and the proof.30 Given the factual admission by the parties in their pleadings that
there is no property to be accounted for, respondent judge has no basis to assert jurisdiction in this case to
resolve a matter no longer deemed in controversy.
In sum, we find that respondent judge may proceed to determine the issue regarding the custody of the two
children born of the union between petitioner and private respondent. Private respondent erred, however, in
claiming cognizance to settle the matter of property relations of the parties, which is not at issue.
WHEREFORE, the orders of the Regional Trial Court of Makati, Branch 149, issued on September 30, 1999
and March 31, 2000 are AFFIRMED with MODIFICATION. We hereby declare that the trial court has
jurisdiction over the issue between the parties as to who has parental custody, including the care, support and
education of the children, namely Carolynne and Alexandra Kristine Roehr. Let the records of this case be
remanded promptly to the trial court for continuation of appropriate proceedings. No pronouncement as to
costs.
SO ORDERED.
Bellosillo, (Chairman), and Callejo, Sr., JJ., concur.
Austria-Martinez, J., on official leave.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 17958

February 27, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
LOL-LO and SARAW, defendants-appellants.
Thos. D. Aitken for appellants.
Acting Attorney-General Tuason for appellee.
MALCOLM, J.:
The days when pirates roamed the seas, when picturesque buccaneers like Captain Avery and Captain Kidd
and Bartholomew Roberts gripped the imagination, when grostesque brutes like Blackbeard flourished, seem
far away in the pages of history and romance. Nevertheless, the record before us tells a tale of twentieth
century piracy in the south seas, but stripped of all touches of chivalry or of generosity, so as to present a
horrible case of rapine and near murder.
On or about June 30, 1920, two boats left matuta, a Dutch possession, for Peta, another Dutch possession. In
one of the boats was one individual, a Dutch subject, and in the other boat eleven men, women, and children,
likewise subjects of Holland. After a number of days of navigation, at about 7 o'clock in the evening, the second
boat arrived between the Islands of Buang and Bukid in the Dutch East Indies. There the boat was surrounded
by six vintas manned by twenty-four Moros all armed. The Moros first asked for food, but once on the Dutch
boat, too for themselves all of the cargo, attacked some of the men, and brutally violated two of the women by
methods too horrible to the described. All of the persons on the Dutch boat, with the exception of the two young
women, were again placed on it and holes were made in it, the idea that it would submerge, although as a

matter of fact, these people, after eleven days of hardship and privation, were succored violating them, the
Moros finally arrived at Maruro, a Dutch possession. Two of the Moro marauder were Lol-lo, who also raped
one of the women, and Saraw. At Maruro the two women were able to escape.
Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu, Philippine Islands. There they
were arrested and were charged in the Court of First Instance of Sulu with the crime of piracy. A demurrer was
interposed by counsel de officio for the Moros, based on the grounds that the offense charged was not within
the jurisdiction of the Court of First Instance, nor of any court of the Philippine Islands, and that the facts did
not constitute a public offense, under the laws in force in the Philippine Islands. After the demurrer was
overruled by the trial judge, trial was had, and a judgment was rendered finding the two defendants guilty and
sentencing each of them to life imprisonment (cadena perpetua), to return together with Kinawalang and
Maulanis, defendants in another case, to the offended parties, the thirty-nine sacks of copras which had been
robbed, or to indemnify them in the amount of 924 rupees, and to pay a one-half part of the costs.
A very learned and exhaustive brief has been filed in this court by the attorney de officio. By a process of
elimination, however, certain questions can be quickly disposed of.
The proven facts are not disputed. All of the elements of the crime of piracy are present. Piracy is robbery or
forcible depredation on the high seas, without lawful authority and done animo furandi, and in the spirit and
intention of universal hostility.
It cannot be contended with any degree of force as was done in the lover court and as is again done in this
court, that the Court of First Instance was without jurisdiction of the case. Pirates are in law hostes humani
generis. Piracy is a crime not against any particular state but against all mankind. It may be punished in the
competent tribunal of any country where the offender may be found or into which he may be carried. The
jurisdiction of piracy unlike all other crimes has no territorial limits. As it is against all so may it be punished by
all. Nor does it matter that the crime was committed within the jurisdictional 3-mile limit of a foreign state, "for
those limits, though neutral to war, are not neutral to crimes." (U.S. vs. Furlong [1820], 5 Wheat., 184.)
The most serious question which is squarely presented to this court for decision for the first time is whether or
not the provisions of the Penal Code dealing with the crime of piracy are still in force. Article 153 to 156 of the
Penal Code reads as follows:
ART. 153. The crime of piracy committed against Spaniards, or the subjects of another nation not at
war with Spain, shall be punished with a penalty ranging from cadena temporal to cadena perpetua.
If the crime be committed against nonbelligerent subjects of another nation at war with Spain, it shall be
punished with the penalty of presidio mayor.
ART. 154. Those who commit the crimes referred to in the first paragraph of the next preceding article
shall suffer the penalty of cadena perpetua or death, and those who commit the crimes referred to in
the second paragraph of the same article, from cadena temporal to cadena perpetua:
1. Whenever they have seized some vessel by boarding or firing upon the same.
2. Whenever the crime is accompanied by murder, homicide, or by any of the physical injuries
specified in articles four hundred and fourteen and four hundred and fifteen and in paragraphs
one and two of article four hundred and sixteen.
3. Whenever it is accompanied by any of the offenses against chastity specified in Chapter II,
Title IX, of this book.

4. Whenever the pirates have abandoned any persons without means of saving themselves.
5. In every case, the captain or skipper of the pirates.
ART. 155. With respect to the provisions of this title, as well as all others of this code, when Spain is
mentioned it shall be understood as including any part of the national territory.
ART. 156. For the purpose of applying the provisions of this code, every person, who, according to the
Constitution of the Monarchy, has the status of a Spaniard shall be considered as such.
The general rules of public law recognized and acted on by the United States relating to the effect of a transfer
of territory from another State to the United States are well-known. The political law of the former sovereignty is
necessarily changed. The municipal law in so far as it is consistent with the Constitution, the laws of the United
States, or the characteristics and institutions of the government, remains in force. As a corollary to the main
rules, laws subsisting at the time of transfer, designed to secure good order and peace in the community, which
are strictly of a municipal character, continue until by direct action of the new government they are altered or
repealed. (Chicago, Rock Islands, etc., R. Co. vs. McGlinn [1885], 114 U.S., 542.)
These principles of the public law were given specific application to the Philippines by the Instructions of
President McKinley of May 19, 1898, to General Wesley Meritt, the Commanding General of the Army of
Occupation in the Philippines, when he said:
Though the powers of the military occupant are absolute and supreme, and immediately operate upon
the political condition of the inhabitants, the municipal laws of the conquered territory, such as affect
private rights of person and property, and provide for the punishment of crime, are considered as
continuing in force, so far as they are compatible with the new order of things, until they are suspended
or superseded by the occupying belligerent; and practice they are not usually abrogated, but are
allowed to remain in force, and to be administered by the ordinary tribunals, substantially as they were
before the occupations. This enlightened practice is so far as possible, to be adhered to on the present
occasion. (Official Gazette, Preliminary Number, Jan. 1, 1903, p. 1. See also General Merritt
Proclamation of August 14, 1898.)
It cannot admit of doubt that the articles of the Spanish Penal Code dealing with piracy were meant to include
the Philippine Islands. Article 156 of the Penal Code in relation to article 1 of the Constitution of the Spanish
Monarchy, would also make the provisions of the Code applicable not only to Spaniards but to Filipinos.
The opinion of Grotius was that piracy by the law of nations is the same thing as piracy by the civil law, and he
has never been disputed. The specific provisions of the Penal Code are similar in tenor to statutory provisions
elsewhere and to the concepts of the public law. This must necessarily be so, considering that the Penal Code
finds its inspiration in this respect in the Novelas, the Partidas, and the Novisima Recopilacion.
The Constitution of the United States declares that the Congress shall have the power to define and punish
piracies and felonies committed on the high seas, and offenses against the law of nations. (U.S. Const. Art. I,
sec. 8, cl. 10.) The Congress, in putting on the statute books the necessary ancillary legislation, provided that
whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards
brought into or found in the United States, shall be imprisoned for life. (U.S. Crim. Code, sec. 290; penalty
formerly death: U.S. Rev. Stat., sec. 5368.) The framers of the Constitution and the members of Congress
were content to let a definition of piracy rest on its universal conception under the law of nations.
It is evident that the provisions of the Penal Code now in force in the Philippines relating to piracy are not
inconsistent with the corresponding provisions in force in the United States.

By the Treaty of Paris, Spain ceded the Philippine Islands to the United States. A logical construction of articles
of the Penal Code, like the articles dealing with the crime of piracy, would be that wherever "Spain" is
mentioned, it should be substituted by the words "United States" and wherever "Spaniards" are mentioned, the
word should be substituted by the expression "citizens of the United States and citizens of the Philippine
Islands." somewhat similar reasoning led this court in the case of United States vs. Smith ([1919], 39 Phil.,
533) to give to the word "authority" as found in the Penal Code a limited meaning, which would no longer
comprehend all religious, military, and civil officers, but only public officers in the Government of the Philippine
Islands.
Under the construction above indicated, article 153 of the Penal Code would read as follows:
The crime of piracy committed against citizens of the United States and citizens of the Philippine
Islands, or the subjects of another nation not at war with the United States, shall be punished with a
penalty ranging from cadena temporal to cadena perpetua.
If the crime be committed against nonbelligerent subjects of another nation at war with the United
States, it shall be punished with the penalty of presidio mayor.
We hold those provisions of the Penal code dealing with the crime of piracy, notably articles 153 and 154, to be
still in force in the Philippines.
The crime falls under the first paragraph of article 153 of the Penal Code in relation to article 154. There are
present at least two of the circumstances named in the last cited article as authorizing either cadena
perpetua or death. The crime of piracy was accompanied by (1) an offense against chastity and (2) the
abandonment of persons without apparent means of saving themselves. It is, therefore, only necessary for us
to determine as to whether the penalty of cadena perpetua or death should be imposed. In this connection, the
trial court, finding present the one aggravating circumstance of nocturnity, and compensating the same by the
one mitigating circumstance of lack of instruction provided by article 11, as amended, of the Penal Code,
sentenced the accused to life imprisonment. At least three aggravating circumstances, that the wrong done in
the commission of the crime was deliberately augmented by causing other wrongs not necessary for its
commission, that advantage was taken of superior strength, and that means were employed which added
ignominy to the natural effects of the act, must also be taken into consideration in fixing the penalty.
Considering, therefore, the number and importance of the qualifying and aggravating circumstances here
present, which cannot be offset by the sole mitigating circumstance of lack of instruction, and the horrible
nature of the crime committed, it becomes our duty to impose capital punishment.
The vote upon the sentence is unanimous with regard to the propriety of the imposition of the death penalty
upon the defendant and appellant Lo-lo (the accused who raped on of the women), but is not unanimous with
regard to the court, Mr. Justice Romualdez, registers his nonconformity. In accordance with provisions of Act
No. 2726, it results, therefore, that the judgment of the trial court as to the defendant and appellant Saraw is
affirmed, and is reversed as to the defendant and appellant Lol-lo, who is found guilty of the crime of piracy
and is sentenced therefor to be hung until dead, at such time and place as shall be fixed by the judge of first
instance of the Twenty-sixth Judicial District. The two appellants together with Kinawalang and Maulanis,
defendants in another case, shall indemnify jointly and severally the offended parties in the equivalent of 924
rupees, and shall pay a one-half part of the costs of both instances. So ordered.
Araullo, C.J., Johnson, Avancea, Villamor, Ostrand, Johns and Romualdez, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 85140 May 17, 1990

TOMAS EUGENIO, SR., petitioner,
vs.
HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20, Cagayan de Oro City,
DEPUTY SHERIFF JOHNSON TAN, JR., Deputy Sheriff of Branch 20, Regional Trial Court, Cagayan de
Oro City, and the Private Respondents, the petitioners in Sp. Proc. No. 88-55, for "Habeas Corpus",
namely: CRISANTA VARGAS-SANCHEZ, SANTOS and NARCISA VARGAS-BENTULAN, respondents.
G.R. No. 86470 May 17, 1990.

TOMAS EUGENIO, petitioner-appellant,

vs.
HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20, Cagayan de Oro City,
CRISANTA VARGAS-SANCHEZ, FELIX VARGAS, ERNESTO VARGAS, NATIVIDAD VARGAS-CAGAPE,
NENITA VARGAS-CADENAS, LUDIVINA VARGAS-DE LOS SANTOS and NARCISA VARGASBENTULAN, respondents-appellees.
Maximo G. Rodriguez for petitioner.
Erasmo B. Damasing and Oliver Asis Improso for respondents.

PADILLA, J.:
On 5 October 1988, petitioner came to this Court with a petition for certiorari and prohibition with application for
restraining order and/or injunction (docketed as G.R. No. 85140) seeking to enjoin respondent Judge from
proceeding with the Habeas Corpus case (Sp. Proc. No. 88- 55, RTC, Branch 20, Cagayan de Oro City), * the
respondent Sheriff from enforcing and implementing the writ and orders of the respondent Judge dated 28, 29,
and 30 September 1988, and to declare said writ and orders as null and void. In a resolution issued on 11
October 1988, this Court required comment from the respondents on the petition but denied the application for
a temporary restraining order.
The records disclose the following:
Unaware of the death on 28 August 1988 of (Vitaliana Vargas Vitaliana for brevity), her full blood brothers and
sisters, herein private respondents (Vargases', for brevity) filed on 27 September 1988, a petition for habeas
corpus before the RTC of Misamis Oriental (Branch 20, Cagayan de Oro City) alleging that Vitaliana was
forcibly taken from her residence sometime in 1987 and confined by herein petitioner in his palacial residence
in Jasaan, Misamis Oriental. Despite her desire to escape, Vitaliana was allegedly deprived of her liberty
without any legal authority. At the time the petition was filed, it was alleged that Vitaliana was 25 years of age,
single, and living with petitioner Tomas Eugenio.
The respondent court in an order dated 28 September 1988 issued the writ of habeas corpus, but the writ was
returned unsatisfied. Petitioner refused to surrender the body of Vitaliana (who had died on 28 August 1988) to
the respondent sheriff, reasoning that a corpse cannot be the subject of habeas corpus proceedings; besides,
according to petitioner, he had already obtained a burial permit from the Undersecretary of the Department of
Health, authorizing the burial at the palace quadrangle of the Philippine Benevolent Christian Missionary, Inc.
(PBCM), a registered religious sect, of which he (petitioner) is the Supreme President and Founder.
Petitioner also alleged that Vitaliana died of heart failure due to toxemia of pregnancy in his residence on 28
August 1988. As her common law husband, petitioner claimed legal custody of her body. These reasons were
incorporated in an explanation filed before the respondent court. Two (2) orders dated 29 and 30 September
1988 were then issued by respondent court, directing delivery of the deceased's body to a funeral parlor in
Cagayan de Oro City and its autopsy.
Petitioner (as respondent in the habeas corpus proceedings) filed an urgent motion to dismiss the petition
therein, claiming lack of jurisdiction of the court over the nature of the action under sec. 1(b) of Rule 16 in
relation to sec. 2, Rule 72 of the Rules of Court. 1 A special proceeding for habeas corpus, petitioner argued, is
not applicable to a dead person but extends only to all cases of illegal confinement or detention of a live
person.

Before resolving the motion to dismiss, private respondents (as petitioners below) were granted leave to
amend their petition. 2 Claiming to have knowledge of the death of Vitaliana only on 28 September 1988 (or
after the filing of thehabeas corpus petition), private respondents (Vargases') alleged that petitioner Tomas
Eugenia who is not in any way related to Vitaliana was wrongfully interfering with their (Vargases') duty to bury
her. Invoking Arts. 305 and 308 of the Civil Code, 3the Vargases contended that, as the next of kin in the
Philippines, they are the legal custodians of the dead body of their sister Vitaliana. An exchange of pleadings
followed. The motion to dismiss was finally submitted for resolution on 21 October 1988.
In the absence of a restraining order from this Court, proceedings continued before the respondent court; the
body was placed in a coffin, transferred to the Greenhills Memorial Homes in Cagayan de Oro City, viewed by
the presiding Judge of respondent court, and examined by a duly authorized government pathologist. 4
Denying the motion to dismiss filed by petitioner, the court a quo held in an order, 5 dated 17 November 1988,
that:
It should be noted from the original petition, to the first amended petition, up to the second
amended petition that the ultimate facts show that if the person of Vitaliana Vargas turns out to
be dead then this Court is being prayed to declare the petitioners as the persons entitled to the
custody, interment and/or burial of the body of said deceased. The Court, considering the
circumstance that Vitaliana Vargas was already dead on August 28, 1988 but only revealed to
the Court on September 29, 1988 by respondent's counsel, did not lose jurisdiction over the
nature and subject matter of this case because it may entertain this case thru the allegations in
the body of the petition on the determination as to who is entitled to the custody of the dead
body of the late Vitaliana Vargas as well as the burial or interment thereof, for the reason that
under the provisions of Sec. 19 of Batas Pambansa Blg. 129, which reads as follows:
Sec. 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive original
jurisdiction:
(1) In all civil actions in which the subject of the litigation is incapable of
pecuniary estimation;
xxx xxx xxx
(5) In all actions involving the contract of marriage and marital relations;
(6) In all cases not within the exclusive jurisdiction of any court, tribunal, person
or body exercising judicial or quasi-judicial functions:
xxx xxx xxx
it so provides that the Regional Trial Court has exclusive original jurisdiction to try this case. The
authority to try the issue of custody and burial of a dead person is within the lawful jurisdiction of
this Court because of Batas Pambansa Blg. 129 and because of the allegations of the pleadings
in this case, which are enumerated in Sec. 19, pars. 1, 5 and 6 of Batas Pambansa Blg. 129.
Thereafter, the court a quo proceeded as in or civil cases and, in due course, rendered a decision on 17
January 1989, 6 resolving the main issue of whether or not said court acquired jurisdiction over the case by
treating it as an action for custody of a dead body, without the petitioners having to file a separate civil action
for such relief, and without the Court first dismissing the original petition for habeas corpus.

Citing Sections 19 and 20 of Batas Pambansa Blg. 129 (the Judiciary Reorganization Act of 1981), 7 Sections 5
and 6 of Rule 135 of the Rules of Court 8 Articles 305 and 308 in relation to Article 294 of the Civil Code and
Section 1104 of the Revised Administrative Code, 9 the decision stated:
. . . . By a mere reading of the petition the court observed that the allegations in the original
petition as well as in the two amended petitions show that Vitaliana Vargas has been restrained
of her liberty and if she were dead then relief was prayed for the custody and burial of said dead
person. The amendments to the petition were but elaborations but the ultimate facts remained
the same, hence, this court strongly finds that this court has ample jurisdiction to entertain and
sit on this case as an action for custody and burial of the dead body because the body of the
petition controls and is binding and since this case was raffled to this court to the exclusion of all
other courts, it is the primary duty of this court to decide and dispose of this case. . . . . 10
Satisfied with its jurisdiction, the respondent court then proceeded to the matter of rightful custody over the
dead body, (for purposes of burial thereof). The order of preference to give support under Art. 294 was used as
the basis of the award. Since there was no surviving spouse, ascendants or descendants, the brothers and
sisters were preferred over petitioner who was merely a common law spouse, the latter being himself legally
married to another woman. 11
On 23 January 1989, a new petition for review with application for a temporary restraining order and/or
preliminary injunction was filed with this Court (G.R. No. 86470). Raised therein were pure questions of law,
basically Identical to those raised in the earlier petition (G.R. No. 85140); hence, the consolidation of both
cases.12 On 7 February 1989, petitioner filed an urgent motion for the issuance of an injunction to
maintain status quo pending appeal, which this Court denied in a resolution dated 23 February 1989 stating
that "Tomas Eugenio has so far failed to sufficiently establish a clear legal right to the custody of the dead body
of Vitaliana Vargas, which now needs a decent burial." The petitions were then submitted for decision without
further pleadings.
Between the two (2) consolidated petitions, the following issues are raised:
1. propriety of a habeas corpus proceeding under Rule 102 of the Rules of Court to recover
custody of the dead body of a 25 year old female, single, whose nearest surviving claimants are
full blood brothers and sisters and a common law husband.
2. jurisdiction of the RTC over such proceedings and/or its authority to treat the action as one for
custody/possession/authority to bury the deceased/recovery of the dead.
3. interpretation of par. 1, Art. 294 of the Civil Code (Art. 199 of the new Family
Code) which states:
Art. 294. The claim for support, when proper and two or more persons are
obliged to give it, shall be made in the following order:
(1) From the spouse;
xxx xxx xxx
Section 19, Batas Pambansa Blg. 129 provides for the exclusive original jurisdiction of the Regional Trial
Courts over civil cases. Under Sec. 2, Rule 102 of the Rules of Court, the writ of habeas corpus may be
granted by a Court of First Instance (now Regional Trial Court). It is an elementary rule of procedure that what
controls is not the caption of the complaint or petition; but the allegations therein determine the nature of the

action, and even without the prayer for a specific remedy, proper relief may nevertheless be granted by the
court if the facts alleged in the complaint and the evidence introduced so warrant. 13
When the petition for habeas corpus was filed before the court a quo, it was not certain whether Vitaliana was
dead or alive. While habeas corpus is a writ of right, it will not issue as a matter of course or as a mere
perfimetory operation on the filing of the petition. Judicial discretion is exercised in its issuance, and such facts
must be made to appear to the judge to whom the petition is presented as, in his judgment, prima facie entitle
the petitioner to the writ. 14 While the court may refuse to grant the writ if the petition is insufficient in form and
substance, the writ should issue if the petition complies with the legal requirements and its averments make
a prima facie case for relief. However, a judge who is asked to issue a writ of habeas corpus need not be very
critical in looking into the petition for very clear grounds for the exercise of this jurisdiction. The latter's power to
make full inquiry into the cause of commitment or detention will enable him to correct any errors or defects in
the petition. 15
In Macazo and Nunez vs. Nunez, 16 the Court frowned upon the dismissal of a habeas corpus petition filed by
a brother to obtain custody of a minor sister, stating:
All these circumstances notwithstanding, we believe that the case should not have been
dismissed. The court below should not have overlooked that by dismissing the petition, it was
virtually sanctioning the continuance of an adulterous and scandalous relation between the
minor and her married employer, respondent Benildo Nunez against all principles of law and
morality. It is no excuse that the minor has expressed preference for remaining with said
respondent, because the minor may not chose to continue an illicit relation that morals and law
repudiate.
xxx xxx xxx
The minor's welfare being the paramount consideration, the court below should not allow the
technicality, that Teofilo Macazo was not originally made a party, to stand in the way of its giving
the child full protection. Even in a habeas corpus proceeding the court had power to award
temporary custody to the petitioner herein, or some other suitable person, after summoning and
hearing all parties concerned. What matters is that the immoral situation disclosed by the
records be not allowed to continue. 17
After the fact of Vitaliana's death was made known to the petitioners in the habeas
corpus proceedings,amendment of the petition for habeas corpus, not dismissal, was proper to avoid
multiplicity of suits. Amendments to pleadings are generally favored and should be liberally allowed in
furtherance of justice in order that every case may so far as possible be determined on its real facts and in
order to expedite the trial of cases or prevent circuity of action and unnecessary expense, unless there are
circumstances such as inexcusable delay or the taking of the adverse party by surprise or the like, which justify
a refusal of permission to amend. 18 As correctly alleged by respondents, the writ of habeas corpus as a
remedy became moot and academic due to the death of the person allegedly restrained of liberty, but the issue
of custody remained, which the court a quo had to resolve.
Petitioner claims he is the spouse contemplated under Art. 294 of the Civil Code, the term spouse used therein
not being preceded by any qualification; hence, in the absence of such qualification, he is the rightful custodian
of Vitaliana's body. Vitaliana's brothers and sisters contend otherwise. Indeed, Philippine Law does not
recognize common law marriages. A man and woman not legally married who cohabit for many years as
husband and wife, who represent themselves to the public as husband and wife, and who are reputed to be
husband and wife in the community where they live may be considered legally mauled in common law
jurisdictions but not in the Philippines. 19

While it is true that our laws do not just brush aside the fact that such relationships are present in our society,
and that they produce a community of properties and interests which is governed by law, 20 authority exists in
case law to the effect that such form of co-ownership requires that the man and woman living together must
not in any way be incapacitated to contract marriage. 21 In any case, herein petitioner has a subsisting
marriage with another woman, a legal impediment which disqualified him from even legally marrying Vitaliana.
In Santero vs. CFI of Cavite, 22 ,the Court, thru Mr. Justice Paras, interpreting Art. 188 of the Civil Code
(Support of Surviving Spouse and Children During Liquidation of Inventoried Property) stated: "Be it noted
however that with respect to 'spouse', the same must be the legitimate 'spouse' (not common-law spouses)."
There is a view that under Article 332 of the Revised Penal Code, the term "spouse" embraces common law
relation for purposes of exemption from criminal liability in cases of theft, swindling and malicious mischief
committed or caused mutually by spouses. The Penal Code article, it is said, makes no distinction between a
couple whose cohabitation is sanctioned by a sacrament or legal tie and another who are husband and wife de
facto. 23 But this view cannot even apply to the facts of the case at bar. We hold that the provisions of the Civil
Code, unless expressly providing to the contrary as in Article 144, when referring to a "spouse" contemplate a
lawfully wedded spouse. Petitioner vis-a-vis Vitaliana was not a lawfully-wedded spouse to her; in fact, he was
not legally capacitated to marry her in her lifetime.
Custody of the dead body of Vitaliana was correctly awarded to her surviving brothers and sisters (the
Vargases). Section 1103 of the Revised Administrative Code provides:
Sec. 1103. Persons charged with duty of burial. The immediate duty of burying the body of a
deceased person, regardless of the ultimate liability for the expense thereof, shall devolve upon
the persons hereinbelow specified:
xxx xxx xxx
(b) If the deceased was an unmarried man or woman, or a child, and left any kin,
the duty of burial shall devolve upon the nearest of kin of the deceased, if they be
adults and within the Philippines and in possession of sufficient means to defray
the necessary expenses.
WHEREFORE, the decision appealed from is AFFIRMED. Both petitions are hereby DISMISSED. No Costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Bidin, Sarmiento, Cortes,
Medialdea and Regalado, JJ., concur.
Gancayco and Grino-Aquino, JJ., are on leave.

Republic of the Philippines

SUPREME COURT

SECOND DIVISION
G.R. No. 152577 September 21, 2005
REPUBLIC OF THE PHILIPPINES, Petitioners,
vs.
CRASUS L. IYOY, Respondent.
DECISION
CHICO-NAZARIO, J.:
In this Petition for Review on Certiorari under Rule 45 of the Rules of Court, petitioner Republic of the
Philippines, represented by the Office of the Solicitor General, prays for the reversal of the Decision of the
Court of Appeals in CA-G.R. CV No. 62539, dated 30 July 2001,1 affirming the Judgment of the Regional Trial
Court (RTC) of Cebu City, Branch 22, in Civil Case No. CEB-20077, dated 30 October 1998,2 declaring the
marriage between respondent Crasus L. Iyoy and Fely Ada Rosal-Iyoy null and void on the basis of Article 36
of the Family Code of the Philippines.
The proceedings before the RTC commenced with the filing of a Complaint3 for declaration of nullity of
marriage by respondent Crasus on 25 March 1997. According to the said Complaint, respondent Crasus
married Fely on 16 December 1961 at Bradford Memorial Church, Jones Avenue, Cebu City. As a result of
their union, they had five children Crasus, Jr., Daphne, Debbie, Calvert, and Carlos who are now all of legal
ages. After the celebration of their marriage, respondent Crasus discovered that Fely was "hot-tempered, a
nagger and extravagant." In 1984, Fely left the Philippines for the United States of America (U.S.A.), leaving all
of their five children, the youngest then being only six years old, to the care of respondent Crasus. Barely a
year after Fely left for the U.S.A., respondent Crasus received a letter from her requesting that he sign the
enclosed divorce papers; he disregarded the said request. Sometime in 1985, respondent Crasus learned,
through the letters sent by Fely to their children, that Fely got married to an American, with whom she
eventually had a child. In 1987, Fely came back to the Philippines with her American family, staying at Cebu
Plaza Hotel in Cebu City. Respondent Crasus did not bother to talk to Fely because he was afraid he might not
be able to bear the sorrow and the pain she had caused him. Fely returned to the Philippines several times
more: in 1990, for the wedding of their eldest child, Crasus, Jr.; in 1992, for the brain operation of their fourth
child, Calvert; and in 1995, for unknown reasons. Fely continued to live with her American family in New
Jersey, U.S.A. She had been openly using the surname of her American husband in the Philippines and in the
U.S.A. For the wedding of Crasus, Jr., Fely herself had invitations made in which she was named as "Mrs. Fely
Ada Micklus." At the time the Complaint was filed, it had been 13 years since Fely left and abandoned
respondent Crasus, and there was no more possibility of reconciliation between them. Respondent Crasus
finally alleged in his Complaint that Felys acts brought danger and dishonor to the family, and clearly
demonstrated her psychological incapacity to perform the essential obligations of marriage. Such incapacity,
being incurable and continuing, constitutes a ground for declaration of nullity of marriage under Article 36, in
relation to Articles 68, 70, and 72, of the Family Code of the Philippines.
Fely filed her Answer and Counterclaim4 with the RTC on 05 June 1997. She asserted therein that she was
already an American citizen since 1988 and was now married to Stephen Micklus. While she admitted being
previously married to respondent Crasus and having five children with him, Fely refuted the other allegations
made by respondent Crasus in his Complaint. She explained that she was no more hot-tempered than any
normal person, and she may had been indignant at respondent Crasus on certain occasions but it was
because of the latters drunkenness, womanizing, and lack of sincere effort to find employment and to
contribute to the maintenance of their household. She could not have been extravagant since the family hardly
had enough money for basic needs. Indeed, Fely left for abroad for financial reasons as respondent Crasus
had no job and what she was then earning as the sole breadwinner in the Philippines was insufficient to
support their family. Although she left all of her children with respondent Crasus, she continued to provide
financial support to them, as well as, to respondent Crasus. Subsequently, Fely was able to bring her children
to the U.S.A., except for one, Calvert, who had to stay behind for medical reasons. While she did file for
divorce from respondent Crasus, she denied having herself sent a letter to respondent Crasus requesting him

to sign the enclosed divorce papers. After securing a divorce from respondent Crasus, Fely married her
American husband and acquired American citizenship. She argued that her marriage to her American husband
was legal because now being an American citizen, her status shall be governed by the law of her present
nationality. Fely also pointed out that respondent Crasus himself was presently living with another woman who
bore him a child. She also accused respondent Crasus of misusing the amount of P90,000.00 which she
advanced to him to finance the brain operation of their son, Calvert. On the basis of the foregoing, Fely also
prayed that the RTC declare her marriage to respondent Crasus null and void; and that respondent Crasus be
ordered to pay to Fely the P90,000.00 she advanced to him, with interest, plus, moral and exemplary
damages, attorneys fees, and litigation expenses.
After respondent Crasus and Fely had filed their respective Pre-Trial Briefs,5 the RTC afforded both parties the
opportunity to present their evidence. Petitioner Republic participated in the trial through the Provincial
Prosecutor of Cebu.6
Respondent Crasus submitted the following pieces of evidence in support of his Complaint: (1) his own
testimony on 08 September 1997, in which he essentially reiterated the allegations in his Complaint;7 (2) the
Certification, dated 13 April 1989, by the Health Department of Cebu City, on the recording of the Marriage
Contract between respondent Crasus and Fely in the Register of Deeds, such marriage celebration taking
place on 16 December 1961;8 and (3) the invitation to the wedding of Crasus, Jr., their eldest son, wherein Fely
openly used her American husbands surname, Micklus.9
Felys counsel filed a Notice,10 and, later on, a Motion,11 to take the deposition of witnesses, namely, Fely and
her children, Crasus, Jr. and Daphne, upon written interrogatories, before the consular officers of the
Philippines in New York and California, U.S.A, where the said witnesses reside. Despite the Orders12 and
Commissions13issued by the RTC to the Philippine Consuls of New York and California, U.S.A., to take the
depositions of the witnesses upon written interrogatories, not a single deposition was ever submitted to the
RTC. Taking into account that it had been over a year since respondent Crasus had presented his evidence
and that Fely failed to exert effort to have the case progress, the RTC issued an Order, dated 05 October
1998,14 considering Fely to have waived her right to present her evidence. The case was thus deemed
submitted for decision.
Not long after, on 30 October 1998, the RTC promulgated its Judgment declaring the marriage of respondent
Crasus and Fely null and void ab initio, on the basis of the following findings
The ground bearing defendants psychological incapacity deserves a reasonable consideration. As observed,
plaintiffs testimony is decidedly credible. The Court finds that defendant had indeed exhibited unmistakable
signs of psychological incapacity to comply with her marital duties such as striving for family unity, observing
fidelity, mutual love, respect, help and support. From the evidence presented, plaintiff adequately established
that the defendant practically abandoned him. She obtained a divorce decree in the United States of America
and married another man and has establish [sic] another family of her own. Plaintiff is in an anomalous
situation, wherein he is married to a wife who is already married to another man in another country.
Defendants intolerable traits may not have been apparent or manifest before the marriage, the FAMILY CODE
nonetheless allows the annulment of the marriage provided that these were eventually manifested after the
wedding. It appears to be the case in this instance.
Certainly defendants posture being an irresponsible wife erringly reveals her very low regard for that sacred
and inviolable institution of marriage which is the foundation of human society throughout the civilized world. It
is quite evident that the defendant is bereft of the mind, will and heart to comply with her marital obligations,
such incapacity was already there at the time of the marriage in question is shown by defendants own attitude
towards her marriage to plaintiff.
In sum, the ground invoked by plaintiff which is defendants psychological incapacity to comply with the
essential marital obligations which already existed at the time of the marriage in question has been
satisfactorily proven. The evidence in herein case establishes the irresponsibility of defendant Fely Ada Rosal
Iyoy, firmly.

Going over plaintiffs testimony which is decidedly credible, the Court finds that the defendant had indeed
exhibited unmistakable signs of such psychological incapacity to comply with her marital obligations. These are
her excessive disposition to material things over and above the marital stability. That such incapacity was
already there at the time of the marriage in question is shown by defendants own attitude towards her
marriage to plaintiff. And for these reasons there is a legal ground to declare the marriage of plaintiff Crasus L.
Iyoy and defendant Fely Ada Rosal Iyoy null and void ab initio.15
Petitioner Republic, believing that the afore-quoted Judgment of the RTC was contrary to law and evidence,
filed an appeal with the Court of Appeals. The appellate court, though, in its Decision, dated 30 July 2001,
affirmed the appealed Judgment of the RTC, finding no reversible error therein. It even offered additional
ratiocination for declaring the marriage between respondent Crasus and Fely null and void, to wit
Defendant secured a divorce from plaintiff-appellee abroad, has remarried, and is now permanently residing in
the United States. Plaintiff-appellee categorically stated this as one of his reasons for seeking the declaration
of nullity of their marriage

Article 26 of the Family Code provides:

"Art. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country
where they were solemnized, and valid there as such, shall also be valid in this country, except those
prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
"WHERE A MARRIAGE BETWEEN A FILIPINO CITIZEN AND A FOREIGNER IS VALIDLY CELEBRATED
AND A DIVORCE IS THEREAFTER VALIDLY OBTAINED ABROAD BY THE ALIEN SPOUSE CAPACITATING
HIM OR HER TO REMARRY, THE FILIPINO SPOUSE SHALL LIKEWISE HAVE CAPACITY TO REMARRY
UNDER PHILIPPINE LAW."
The rationale behind the second paragraph of the above-quoted provision is to avoid the absurd and unjust
situation of a Filipino citizen still being married to his or her alien spouse, although the latter is no longer
married to the Filipino spouse because he or she has obtained a divorce abroad. In the case at bench, the
defendant has undoubtedly acquired her American husbands citizenship and thus has become an alien as
well. This Court cannot see why the benefits of Art. 26 aforequoted can not be extended to a Filipino citizen
whose spouse eventually embraces another citizenship and thus becomes herself an alien.
It would be the height of unfairness if, under these circumstances, plaintiff would still be considered as married
to defendant, given her total incapacity to honor her marital covenants to the former. To condemn plaintiff to
remain shackled in a marriage that in truth and in fact does not exist and to remain married to a spouse who is
incapacitated to discharge essential marital covenants, is verily to condemn him to a perpetual disadvantage
which this Court finds abhorrent and will not countenance. Justice dictates that plaintiff be given relief by
affirming the trial courts declaration of the nullity of the marriage of the parties.16
After the Court of Appeals, in a Resolution, dated 08 March 2002,17 denied its Motion for Reconsideration,
petitioner Republic filed the instant Petition before this Court, based on the following arguments/grounds
I. Abandonment by and sexual infidelity of respondents wife do not per se constitute psychological incapacity.
II. The Court of Appeals has decided questions of substance not in accord with law and jurisprudence
considering that the Court of Appeals committed serious errors of law in ruling that Article 26, paragraph 2 of
the Family Code is inapplicable to the case at bar.18
In his Comment19 to the Petition, respondent Crasus maintained that Felys psychological incapacity was
clearly established after a full-blown trial, and that paragraph 2 of Article 26 of the Family Code of the
Philippines was indeed applicable to the marriage of respondent Crasus and Fely, because the latter had

already become an American citizen. He further questioned the personality of petitioner Republic, represented
by the Office of the Solicitor General, to institute the instant Petition, because Article 48 of the Family Code of
the Philippines authorizes the prosecuting attorney or fiscal assigned to the trial court, not the Solicitor
General, to intervene on behalf of the State, in proceedings for annulment and declaration of nullity of
marriages.
After having reviewed the records of this case and the applicable laws and jurisprudence, this Court finds the
instant Petition to be meritorious.
I
The totality of evidence presented during trial is insufficient to support the finding of psychological incapacity of
Fely.
Article 36, concededly one of the more controversial provisions of the Family Code of the Philippines, reads
ART. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such
incapacity becomes manifest only after its solemnization.
Issues most commonly arise as to what constitutes psychological incapacity. In a series of cases, this Court
laid down guidelines for determining its existence.
In Santos v. Court of Appeals,20 the term psychological incapacity was defined, thus
". . . [P]sychological incapacity" should refer to no less than a mental (not physical) incapacity that causes a
party to be truly cognitive of the basic marital covenants that concomitantly must be assumed and discharged
by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual
obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any
doubt that the intendment of the law has been to confine the meaning of "psychological incapacity" to the most
serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning
and significance to the marriage. This psychological condition must exist at the time the marriage is
celebrated21
The psychological incapacity must be characterized by
(a) Gravity It must be grave or serious such that the party would be incapable of carrying out the ordinary
duties required in a marriage;
(b) Juridical Antecedence It must be rooted in the history of the party antedating the marriage, although the
overt manifestations may emerge only after the marriage; and
(c) Incurability It must be incurable or, even if it were otherwise, the cure would be beyond the means of the
party involved.22
More definitive guidelines in the interpretation and application of Article 36 of the Family Code of the
Philippines were handed down by this Court in Republic v. Court of Appeals and Molina,23 which, although
quite lengthy, by its significance, deserves to be reproduced below
(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be
resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This
is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the
family. Thus, our Constitution devotes an entire Article on the Family, recognizing it "as the foundation of the
nation." It decrees marriage as legally "inviolable," thereby protecting it from dissolution at the whim of the
parties. Both the family and marriage are to be "protected" by the state.

The Family Code echoes this constitutional edict on marriage and the family and emphasizes their
permanence, inviolability and solidarity.
(2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in
the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the
Family Code requires that the incapacity must be psychological - not physical, although its manifestations
and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was
mentally or psychically ill to such an extent that the person could not have known the obligations he was
assuming, or knowing them, could not have given valid assumption thereof. Although no example of such
incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem
generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating
nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists.
(3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence
must show that the illness was existing when the parties exchanged their "I do's." The manifestation of the
illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior
thereto.
(4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability
may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against
everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage
obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in
a job
(5) Such illness must be grave enough to bring about the disability of the party to assume the essential
obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional
outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability,
not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling
factor in the person, an adverse integral element in the personality structure that effectively incapacitates the
person from really accepting and thereby complying with the obligations essential to marriage.
(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as
regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and
their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence
and included in the text of the decision.
(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling or decisive, should be given great respect by our courts
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel
for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be
quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be,
to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such
certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The
Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon
1095.24
A later case, Marcos v. Marcos,25 further clarified that there is no requirement that the defendant/respondent
spouse should be personally examined by a physician or psychologist as a condition sine qua non for the
declaration of nullity of marriage based on psychological incapacity. Such psychological incapacity, however,
must be established by the totality of the evidence presented during the trial.
Using the guidelines established by the afore-mentioned jurisprudence, this Court finds that the totality of
evidence presented by respondent Crasus failed miserably to establish the alleged psychological incapacity of

his wife Fely; therefore, there is no basis for declaring their marriage null and void under Article 36 of the
Family Code of the Philippines.
The only substantial evidence presented by respondent Crasus before the RTC was his testimony, which can
be easily put into question for being self-serving, in the absence of any other corroborating evidence. He
submitted only two other pieces of evidence: (1) the Certification on the recording with the Register of Deeds of
the Marriage Contract between respondent Crasus and Fely, such marriage being celebrated on 16 December
1961; and (2) the invitation to the wedding of Crasus, Jr., their eldest son, in which Fely used her American
husbands surname. Even considering the admissions made by Fely herself in her Answer to respondent
Crasuss Complaint filed with the RTC, the evidence is not enough to convince this Court that Fely had such a
grave mental illness that prevented her from assuming the essential obligations of marriage.
It is worthy to emphasize that Article 36 of the Family Code of the Philippines contemplates downright
incapacity or inability to take cognizance of and to assume the basic marital obligations; not a mere refusal,
neglect or difficulty, much less, ill will, on the part of the errant spouse.26 Irreconcilable differences, conflicting
personalities, emotional immaturity and irresponsibility, physical abuse, habitual alcoholism, sexual infidelity or
perversion, and abandonment, by themselves, also do not warrant a finding of psychological incapacity under
the said Article.27
As has already been stressed by this Court in previous cases, Article 36 "is not to be confused with a divorce
law that cuts the marital bond at the time the causes therefore manifest themselves. It refers to a serious
psychological illness afflicting a party even before the celebration of marriage. It is a malady so grave and so
permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is
about to assume."28
The evidence may have proven that Fely committed acts that hurt and embarrassed respondent Crasus and
the rest of the family. Her hot-temper, nagging, and extravagance; her abandonment of respondent Crasus; her
marriage to an American; and even her flaunting of her American family and her American surname, may
indeed be manifestations of her alleged incapacity to comply with her marital obligations; nonetheless, the root
cause for such was not identified. If the root cause of the incapacity was not identified, then it cannot be
satisfactorily established as a psychological or mental defect that is serious or grave; neither could it be proven
to be in existence at the time of celebration of the marriage; nor that it is incurable. While the personal
examination of Fely by a psychiatrist or psychologist is no longer mandatory for the declaration of nullity of their
marriage under Article 36 of the Family Code of the Philippines, by virtue of this Courts ruling in Marcos v.
Marcos,29 respondent Crasus must still have complied with the requirement laid down in Republic v. Court of
Appeals and Molina30 that the root cause of the incapacity be identified as a psychological illness and that its
incapacitating nature be fully explained.
In any case, any doubt shall be resolved in favor of the validity of the marriage.31 No less than the Constitution
of 1987 sets the policy to protect and strengthen the family as the basic social institution and marriage as the
foundation of the family.32
II
Article 26, paragraph 2 of the Family Code of the Philippines is not applicable to the case at bar.
According to Article 26, paragraph 2 of the Family Code of the Philippines
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall
likewise have capacity to remarry under Philippine law.
As it is worded, Article 26, paragraph 2, refers to a special situation wherein one of the couple getting married
is a Filipino citizen and the other a foreigner at the time the marriage was celebrated. By its plain and literal
interpretation, the said provision cannot be applied to the case of respondent Crasus and his wife Fely

because at the time Fely obtained her divorce, she was still a Filipino citizen. Although the exact date
was not established, Fely herself admitted in her Answer filed before the RTC that she obtained a divorce from
respondent Crasus sometime after she left for the United States in 1984, after which she married her American
husband in 1985. In the same Answer, she alleged that she had been an American citizen since 1988. At the
time she filed for divorce, Fely was still a Filipino citizen, and pursuant to the nationality principle embodied in
Article 15 of the Civil Code of the Philippines, she was still bound by Philippine laws on family rights and duties,
status, condition, and legal capacity, even when she was already living abroad. Philippine laws, then and even
until now, do not allow and recognize divorce between Filipino spouses. Thus, Fely could not have validly
obtained a divorce from respondent Crasus.
III
The Solicitor General is authorized to intervene, on behalf of the Republic, in proceedings for annulment and
declaration of nullity of marriages.
Invoking Article 48 of the Family Code of the Philippines, respondent Crasus argued that only the prosecuting
attorney or fiscal assigned to the RTC may intervene on behalf of the State in proceedings for annulment or
declaration of nullity of marriages; hence, the Office of the Solicitor General had no personality to file the
instant Petition on behalf of the State. Article 48 provides
ART. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the
prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion
between the parties and to take care that the evidence is not fabricated or suppressed.
That Article 48 does not expressly mention the Solicitor General does not bar him or his Office from intervening
in proceedings for annulment or declaration of nullity of marriages. Executive Order No. 292, otherwise known
as the Administrative Code of 1987, appoints the Solicitor General as the principal law officer and legal
defender of the Government.33 His Office is tasked to represent the Government of the Philippines, its agencies
and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring
the services of lawyers. The Office of the Solicitor General shall constitute the law office of the Government
and, as such, shall discharge duties requiring the services of lawyers.34
The intent of Article 48 of the Family Code of the Philippines is to ensure that the interest of the State is
represented and protected in proceedings for annulment and declaration of nullity of marriages by preventing
collusion between the parties, or the fabrication or suppression of evidence; and, bearing in mind that the
Solicitor General is the principal law officer and legal defender of the land, then his intervention in such
proceedings could only serve and contribute to the realization of such intent, rather than thwart it.
Furthermore, the general rule is that only the Solicitor General is authorized to bring or defend actions on
behalf of the People or the Republic of the Philippines once the case is brought before this Court or the Court
of Appeals.35 While it is the prosecuting attorney or fiscal who actively participates, on behalf of the State, in a
proceeding for annulment or declaration of nullity of marriage before the RTC, the Office of the Solicitor
General takes over when the case is elevated to the Court of Appeals or this Court. Since it shall be eventually
responsible for taking the case to the appellate courts when circumstances demand, then it is only reasonable
and practical that even while the proceeding is still being held before the RTC, the Office of the Solicitor
General can already exercise supervision and control over the conduct of the prosecuting attorney or fiscal
therein to better guarantee the protection of the interests of the State.
In fact, this Court had already recognized and affirmed the role of the Solicitor General in several cases for
annulment and declaration of nullity of marriages that were appealed before it, summarized as follows in the
case of Ancheta v. Ancheta36
In the case of Republic v. Court of Appeals [268 SCRA 198 (1997)], this Court laid down the guidelines in the
interpretation and application of Art. 48 of the Family Code, one of which concerns the role of the prosecuting
attorney or fiscal and the Solicitor General to appear as counsel for the State:

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel
for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be
quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be,
to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such
certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The
Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon
1095. [Id., at 213]
This Court in the case of Malcampo-Sin v. Sin [355 SCRA 285 (2001)] reiterated its pronouncement
in Republic v. Court of Appeals [Supra.] regarding the role of the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the State37
Finally, the issuance of this Court of the Rule on Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages,38 which became effective on 15 March 2003, should dispel any other doubts
of respondent Crasus as to the authority of the Solicitor General to file the instant Petition on behalf of the
State. The Rule recognizes the authority of the Solicitor General to intervene and take part in the proceedings
for annulment and declaration of nullity of marriages before the RTC and on appeal to higher courts. The
pertinent provisions of the said Rule are reproduced below
Sec. 5. Contents and form of petition.

(4) It shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of the Solicitor
General and the Office of the City or Provincial Prosecutor, within five days from the date of its filing and submit
to the court proof of such service within the same period.

Sec. 18. Memoranda. The court may require the parties and the public prosecutor, in consultation with the
Office of the Solicitor General, to file their respective memoranda in support of their claims within fifteen days
from the date the trial is terminated. It may require the Office of the Solicitor General to file its own
memorandum if the case is of significant interest to the State. No other pleadings or papers may be submitted
without leave of court. After the lapse of the period herein provided, the case will be considered submitted for
decision, with or without the memoranda.
Sec. 19. Decision.

(2) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the
decision personally or by registered mail. If the respondent summoned by publication failed to appear in the
action, the dispositive part of the decision shall be published once in a newspaper of general circulation.
(3) The decision becomes final upon the expiration of fifteen days from notice to the parties. Entry of judgment
shall be made if no motion for reconsideration or new trial, or appeal is filed by any of the parties, the public
prosecutor, or the Solicitor General.

Sec. 20. Appeal.

(2) Notice of Appeal. An aggrieved party or the Solicitor General may appeal from the decision by filing a
Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new trial. The
appellant shall serve a copy of the notice of appeal on the adverse parties.
Given the foregoing, this Court arrives at a conclusion contrary to those of the RTC and the Court of Appeals,
and sustains the validity and existence of the marriage between respondent Crasus and Fely. At most, Felys
abandonment, sexual infidelity, and bigamy, give respondent Crasus grounds to file for legal separation under
Article 55 of the Family Code of the Philippines, but not for declaration of nullity of marriage under Article 36 of
the same Code. While this Court commiserates with respondent Crasus for being continuously shackled to
what is now a hopeless and loveless marriage, this is one of those situations where neither law nor society can
provide the specific answer to every individual problem.39
WHEREFORE, the Petition is GRANTED and the assailed Decision of the Court of Appeals in CA-G.R. CV No.
62539, dated 30 July 2001, affirming the Judgment of the RTC of Cebu City, Branch 22, in Civil Case No. CEB20077, dated 30 October 1998, is REVERSED and SET ASIDE.
The marriage of respondent Crasus L. Iyoy and Fely Ada Rosal-Iyoy remains valid and subsisting.
SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Associate Justice
Chairman
MA. ALICIA AUSTRIA-MARTINEZ

ROMEO J. CALLEJO, SR.

Associate Justice

Associate Justice

DANTE O. TINGA
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision were reached in consultation before the case was assigned
to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Associate Justice
Chairman, Second Division

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

Republic of the Philippines

SUPREME COURT

FIRST DIVISION
G.R. No. 154380 October 5, 2005
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
CIPRIANO ORBECIDO III, Respondent.
DECISION
QUISUMBING, J.:
Given a valid marriage between two Filipino citizens, where one party is later naturalized as a foreign citizen
and obtains a valid divorce decree capacitating him or her to remarry, can the Filipino spouse likewise remarry
under Philippine law?
Before us is a case of first impression that behooves the Court to make a definite ruling on this apparently
novel question, presented as a pure question of law.
In this petition for review, the Solicitor General assails the Decision1 dated May 15, 2002, of the Regional Trial
Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution2 dated July 4, 2002 denying the motion for
reconsideration. The court a quo had declared that herein respondent Cipriano Orbecido III is capacitated to
remarry. The fallo of the impugned Decision reads:
WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family Code and by reason
of the divorce decree obtained against him by his American wife, the petitioner is given the capacity to remarry
under the Philippine Law.
IT IS SO ORDERED.3
The factual antecedents, as narrated by the trial court, are as follows.
On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of Christ in the
Philippines in Lam-an, Ozamis City. Their marriage was blessed with a son and a daughter, Kristoffer
Simbortriz V. Orbecido and Lady Kimberly V. Orbecido.
In 1986, Ciprianos wife left for the United States bringing along their son Kristoffer. A few years later, Cipriano
discovered that his wife had been naturalized as an American citizen.
Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then married
a certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A. Walnut Grove Avenue,
San Gabriel, California.
Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2 of Article 26
of the Family Code. No opposition was filed. Finding merit in the petition, the court granted the same. The
Republic, herein petitioner, through the Office of the Solicitor General (OSG), sought reconsideration but it was
denied.
In this petition, the OSG raises a pure question of law:
WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY CODE4

The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the instant case
because it only applies to a valid mixed marriage; that is, a marriage celebrated between a Filipino citizen and
an alien. The proper remedy, according to the OSG, is to file a petition for annulment or for legal
separation.5 Furthermore, the OSG argues there is no law that governs respondents situation. The OSG posits
that this is a matter of legislation and not of judicial determination.6
For his part, respondent admits that Article 26 is not directly applicable to his case but insists that when his
naturalized alien wife obtained a divorce decree which capacitated her to remarry, he is likewise capacitated by
operation of law pursuant to Section 12, Article II of the Constitution.7
At the outset, we note that the petition for authority to remarry filed before the trial court actually constituted a
petition for declaratory relief. In this connection, Section 1, Rule 63 of the Rules of Court provides:
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
Section 1. Who may file petitionAny person interested under a deed, will, contract or other written
instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or other
governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional
Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or
duties, thereunder.
...
The requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy; (2) the
controversy must be between persons whose interests are adverse; (3) that the party seeking the relief has a
legal interest in the controversy; and (4) that the issue is ripe for judicial determination.8
This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two Filipino citizens
where one later acquired alien citizenship, obtained a divorce decree, and remarried while in the U.S.A. The
interests of the parties are also adverse, as petitioner representing the State asserts its duty to protect the
institution of marriage while respondent, a private citizen, insists on a declaration of his capacity to remarry.
Respondent, praying for relief, has legal interest in the controversy. The issue raised is also ripe for judicial
determination inasmuch as when respondent remarries, litigation ensues and puts into question the validity of
his second marriage.
Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code apply to the case of
respondent? Necessarily, we must dwell on how this provision had come about in the first place, and what was
the intent of the legislators in its enactment?
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise known as
the "Family Code," which took effect on August 3, 1988. Article 26 thereof states:
All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under
Articles 35, 37, and 38.

On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was likewise
signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was added to Article
26. As so amended, it now provides:
ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country
where they were solemnized, and valid there as such, shall also be valid in this country, except those
prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have
capacity to remarry under Philippine law. (Emphasis supplied)
On its face, the foregoing provision does not appear to govern the situation presented by the case at hand. It
seems to apply only to cases where at the time of the celebration of the marriage, the parties are a Filipino
citizen and a foreigner. The instant case is one where at the time the marriage was solemnized, the parties
were two Filipino citizens, but later on, the wife was naturalized as an American citizen and subsequently
obtained a divorce granting her capacity to remarry, and indeed she remarried an American citizen while
residing in the U.S.A.
Noteworthy, in the Report of the Public Hearings9 on the Family Code, the Catholic Bishops Conference of the
Philippines (CBCP) registered the following objections to Paragraph 2 of Article 26:
1. The rule is discriminatory. It discriminates against those whose spouses are Filipinos who divorce them
abroad. These spouses who are divorced will not be able to re-marry, while the spouses of foreigners who
validly divorce them abroad can.
2. This is the beginning of the recognition of the validity of divorce even for Filipino citizens. For those whose
foreign spouses validly divorce them abroad will also be considered to be validly divorced here and can remarry. We propose that this be deleted and made into law only after more widespread consultation. (Emphasis
supplied.)
Legislative Intent
Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of Article
26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to avoid the
absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce,
is no longer married to the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr.10 The Van
Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held therein that a divorce
decree validly obtained by the alien spouse is valid in the Philippines, and consequently, the Filipino spouse is
capacitated to remarry under Philippine law.
Does the same principle apply to a case where at the time of the celebration of the marriage, the parties were
Filipino citizens, but later on, one of them obtains a foreign citizenship by naturalization?
The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals.11 In Quita, the parties were,
as in this case, Filipino citizens when they got married. The wife became a naturalized American citizen in
1954 and obtained a divorce in the same year. The Court therein hinted, by way of obiter dictum, that a Filipino
divorced by his naturalized foreign spouse is no longer married under Philippine law and can thus remarry.

Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2
of Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the
marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains
a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a
foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and
injustice. Where the interpretation of a statute according to its exact and literal import would lead to
mischievous results or contravene the clear purpose of the legislature, it should be construed according to its
spirit and reason, disregarding as far as necessary the letter of the law. A statute may therefore be extended to
cases not within the literal meaning of its terms, so long as they come within its spirit or intent. 12
If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse
remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse,
then the instant case must be deemed as coming within the contemplation of Paragraph 2 of Article 26.
In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows:
1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and
2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.
The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their
citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry.
In this case, when Ciprianos wife was naturalized as an American citizen, there was still a valid marriage that
has been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife subsequently
obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph
2 of Article 26 are both present in this case. Thus Cipriano, the "divorced" Filipino spouse, should be allowed to
remarry.
We are also unable to sustain the OSGs theory that the proper remedy of the Filipino spouse is to file either a
petition for annulment or a petition for legal separation. Annulment would be a long and tedious process, and in
this particular case, not even feasible, considering that the marriage of the parties appears to have all the
badges of validity. On the other hand, legal separation would not be a sufficient remedy for it would not sever
the marriage tie; hence, the legally separated Filipino spouse would still remain married to the naturalized alien
spouse.
However, we note that the records are bereft of competent evidence duly submitted by respondent concerning
the divorce decree and the naturalization of respondents wife. It is settled rule that one who alleges a fact has
the burden of proving it and mere allegation is not evidence.13
Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was naturalized
as an American citizen. Likewise, before a foreign divorce decree can be recognized by our own courts, the
party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing
it.14 Such foreign law must also be proved as our courts cannot take judicial notice of foreign laws. Like any
other fact, such laws must be alleged and proved.15 Furthermore, respondent must also show that the divorce
decree allows his former wife to remarry as specifically required in Article 26. Otherwise, there would be no
evidence sufficient to declare that he is capacitated to enter into another marriage.
Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code (E.O. No.
209, as amended by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has been divorced by
a spouse who had acquired foreign citizenship and remarried, also to remarry. However, considering that in the
present petition there is no sufficient evidence submitted and on record, we are unable to declare, based on

respondents bare allegations that his wife, who was naturalized as an American citizen, had obtained a
divorce decree and had remarried an American, that respondent is now capacitated to remarry. Such
declaration could only be made properly upon respondents submission of the aforecited evidence in his favor.
ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed Decision dated
May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur,
Branch 23, are hereby SET ASIDE.
No pronouncement as to costs.
SO ORDERED.
LEONARDO A. QUISUMBING
Associate Justice
WE CONCUR:
HILARIO G. DAVIDE, JR.
Chief Justice
Chairman
CONSUELO YNARES-SANTIAGO, ANTONIO T. CARPIO
Associate Justice Associate Justice
ADOLFO S. AZCUNA
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts
Division.
HILARIO G. DAVIDE, JR.
Chief Justice

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 142820

June 20, 2003

WOLFGANG O. ROEHR, petitioner,

vs.
MARIA CARMEN D. RODRIGUEZ, HON. JUDGE JOSEFINA GUEVARA-SALONGA, Presiding Judge of
Makati RTC, Branch 149, respondents.
QUISUMBING, J.:
At the core of the present controversy are issues of (a) grave abuse of discretion allegedly committed by public
respondent and (b) lack of jurisdiction of the regional trial court, in matters that spring from a divorce decree
obtained abroad by petitioner.
In this special civil action for certiorari, petitioner assails (a) the order1 dated September 30, 1999 of public
respondent Judge Josefina Guevara-Salonga, Presiding Judge of Makati Regional Trial Court,2 Branch 149, in
Civil Case No. 96-1389 for declaration of nullity of marriage, and (b) the order3 dated March 31, 2000 denying
his motion for reconsideration. The assailed orders partially set aside the trial courts order dismissing Civil
Case No. 96-1389, for the purpose of resolving issues relating to the property settlement of the spouses and
the custody of their children.
Petitioner Wolfgang O. Roehr, a German citizen and resident of Germany, married private respondent Carmen
Rodriguez, a Filipina, on December 11, 1980 in Hamburg, Germany. Their marriage was subsequently ratified
on February 14, 1981 in Tayasan, Negros Oriental.4 Out of their union were born Carolynne and Alexandra
Kristine on November 18, 1981 and October 25, 1987, respectively.
On August 28, 1996, private respondent filed a petition5 for declaration of nullity of marriage before the
Regional Trial Court (RTC) of Makati City. On February 6, 1997, petitioner filed a motion to dismiss,6 but it was
denied by the trial court in its order7 dated May 28, 1997.
On June 5, 1997, petitioner filed a motion for reconsideration, but was also denied in an order8 dated August
13, 1997. On September 5, 1997, petitioner filed a petition for certiorari with the Court of Appeals. On
November 27, 1998, the appellate court denied the petition and remanded the case to the RTC.

Meanwhile, petitioner obtained a decree of divorce from the Court of First Instance of Hamburg-Blankenese,
promulgated on December 16, 1997.
The decree provides in part:
[T]he Court of First Instance, Hamburg-Blankenese, Branch 513, has ruled through Judge van Buiren of
the Court of First Instance on the basis of the oral proceedings held on 4 Nov. 1997:
The marriage of the Parties contracted on 11 December 1980 before the Civil Registrar of HamburgAltona is hereby dissolved.
The parental custody for the children
Carolynne Roehr, born 18 November 1981
Alexandra Kristine Roehr, born on 25 October 1987
is granted to the father.
The litigation expenses shall be assumed by the Parties.9
In view of said decree, petitioner filed a Second Motion to Dismiss on May 20, 1999 on the ground that the trial
court had no jurisdiction over the subject matter of the action or suit as a decree of divorce had already been
promulgated dissolving the marriage of petitioner and private respondent.
On July 14, 1999, Judge Guevara-Salonga issued an order granting petitioners motion to dismiss. Private
respondent filed a Motion for Partial Reconsideration, with a prayer that the case proceed for the purpose of
determining the issues of custody of children and the distribution of the properties between petitioner and
private respondent.
On August 18, 1999, an Opposition to the Motion for Partial Reconsideration was filed by the petitioner on the
ground that there is nothing to be done anymore in the instant case as the marital tie between petitioner
Wolfgang Roehr and respondent Ma. Carmen D. Rodriguez had already been severed by the decree of
divorce promulgated by the Court of First Instance of Hamburg, Germany on December 16, 1997 and in view
of the fact that said decree of divorce had already been recognized by the RTC in its order of July 14, 1999,
through the implementation of the mandate of Article 26 of the Family Code,10 endowing the petitioner with the
capacity to remarry under the Philippine law.
On September 30, 1999, respondent judge issued the assailed order partially setting aside her order dated
July 14, 1999 for the purpose of tackling the issues of property relations of the spouses as well as support and
custody of their children. The pertinent portion of said order provides:
Acting on the Motion for Partial Reconsideration of the Order dated July 14, 1999 filed by petitioner thru
counsel which was opposed by respondent and considering that the second paragraph of Article 26 of
the Family Code was included as an amendment thru Executive Order 227, to avoid the absurd
situation of a Filipino as being still married to his or her alien spouse though the latter is no longer
married to the Filipino spouse because he/she had obtained a divorce abroad which is recognized by
his/her national law, and considering further the effects of the termination of the marriage under Article
43 in relation to Article 50 and 52 of the same Code, which include the dissolution of the property
relations of the spouses, and the support and custody of their children, the Order dismissing this case
is partially set aside with respect to these matters which may be ventilated in this Court.

SO ORDERED.11 (Emphasis supplied.)

Petitioner filed a timely motion for reconsideration on October 19, 1999, which was denied by respondent judge
in an order dated March 31, 2000.12
Petitioner ascribes lack of jurisdiction of the trial court and grave abuse of discretion on the part of respondent
judge. He cites as grounds for his petition the following:
1. Partially setting aside the order dated July 14, 1999 dismissing the instant case is not allowed by
1997 Rules of Civil Procedure.13
2. Respondent Maria Carmen Rodriguez by her motion for Partial Reconsideration had recognized and
admitted the Divorce Decision obtained by her ex-husband in Hamburg, Germany.14
3. There is nothing left to be tackled by the Honorable Court as there are no conjugal assets alleged in
the Petition for Annulment of Marriage and in the Divorce petition, and the custody of the children had
already been awarded to Petitioner Wolfgang Roehr.15
Pertinent in this case before us are the following issues:
1. Whether or not respondent judge gravely abused her discretion in issuing her order dated September
30, 1999, which partially modified her order dated July 14, 1999; and
2. Whether or not respondent judge gravely abused her discretion when she assumed and retained
jurisdiction over the present case despite the fact that petitioner has already obtained a divorce decree
from a German court.
On the first issue, petitioner asserts that the assailed order of respondent judge is completely inconsistent with
her previous order and is contrary to Section 3, Rule 16, Rules of Civil Procedure, which provides:
Sec. 3. Resolution of motion - After the hearing, the court may dismiss the action or claim, deny the
motion, or order the amendment of the pleading.
The court shall not defer the resolution of the motion for the reason that the ground relied upon is not
indubitable.
In every case, the resolution shall state clearly and distinctly the reasons therefor. (Emphasis supplied.)
Petitioner avers that a courts action on a motion is limited to dismissing the action or claim, denying the
motion, or ordering the amendment of the pleading.
Private respondent, on her part, argues that the RTC can validly reconsider its order dated July 14, 1999
because it had not yet attained finality, given the timely filing of respondents motion for reconsideration.
Pertinent to this issue is Section 3 in relation to Section 7, Rule 37 of the 1997 Rules of Civil Procedure, which
provides:
Sec. 3. Action upon motion for new trial or reconsideration.The trial court may set aside the judgment
or final order and grant a new trial, upon such terms as may be just, or may deny the motion. If the
court finds that excessive damages have been awarded or that the judgment or final order is contrary
to the evidence or law, it may amend such judgment or final order accordingly.

Sec. 7. Partial new trial or reconsideration.If the grounds for a motion under this Rule appear to the
court to affect the issues as to only a part, or less than all of the matters in controversy, or only one, or
less than all, of the parties to it, the court may order a new trial or grant reconsideration as to such
issues if severable without interfering with the judgment or final order upon the rest. (Emphasis
supplied.)
It is clear from the foregoing rules that a judge can order a partial reconsideration of a case that has not yet
attained finality. Considering that private respondent filed a motion for reconsideration within the reglementary
period, the trial court's decision of July 14, 1999 can still be modified. Moreover, in Saado v. Court of
Appeals,16we held that the court could modify or alter a judgment even after the same has become executory
whenever circumstances transpire rendering its decision unjust and inequitable, as where certain facts and
circumstances justifying or requiring such modification or alteration transpired after the judgment has become
final and executory17 and when it becomes imperative in the higher interest of justice or when supervening
events warrant it.18 In our view, there are even more compelling reasons to do so when, as in this case,
judgment has not yet attained finality.
Anent the second issue, petitioner claims that respondent judge committed grave abuse of discretion when she
partially set aside her order dated July 14, 1999, despite the fact that petitioner has already obtained a divorce
decree from the Court of First Instance of Hamburg, Germany.
In Garcia v. Recio,19 Van Dorn v. Romillo, Jr.,20 and Llorente v. Court of Appeals,21 we consistently held that a
divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid
according to the national law of the foreigner. Relevant to the present case is Pilapil v. Ibay-Somera,22 where
this Court specifically recognized the validity of a divorce obtained by a German citizen in his country, the
Federal Republic of Germany. We held in Pilapil that a foreign divorce and its legal effects may be recognized
in the Philippines insofar as respondent is concerned in view of the nationality principle in our civil law on the
status of persons.
In this case, the divorce decree issued by the German court dated December 16, 1997 has not been
challenged by either of the parties. In fact, save for the issue of parental custody, even the trial court
recognized said decree to be valid and binding, thereby endowing private respondent the capacity to remarry.
Thus, the present controversy mainly relates to the award of the custody of their two children, Carolynne and
Alexandra Kristine, to petitioner.
As a general rule, divorce decrees obtained by foreigners in other countries are recognizable in our jurisdiction,
but the legal effects thereof, e.g. on custody, care and support of the children, must still be determined by our
courts.23 Before our courts can give the effect of res judicata to a foreign judgment, such as the award of
custody to petitioner by the German court, it must be shown that the parties opposed to the judgment had been
given ample opportunity to do so on grounds allowed under Rule 39, Section 50 of the Rules of Court (now
Rule 39, Section 48, 1997 Rules of Civil Procedure), to wit:
SEC. 50. Effect of foreign judgments. - The effect of a judgment of a tribunal of a foreign country,
having jurisdiction to pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title to the thing;
(b) In case of a judgment against a person, the judgment is presumptive evidence of a right as between
the parties and their successors in interest by a subsequent title; but the judgment may be repelled by
evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or
fact.

It is essential that there should be an opportunity to challenge the foreign judgment, in order for the court in this
jurisdiction to properly determine its efficacy. In this jurisdiction, our Rules of Court clearly provide that with
respect to actions in personam, as distinguished from actions in rem, a foreign judgment merely
constitutes prima facie evidence of the justness of the claim of a party and, as such, is subject to proof to the
contrary.24
In the present case, it cannot be said that private respondent was given the opportunity to challenge the
judgment of the German court so that there is basis for declaring that judgment as res judicata with regard to
the rights of petitioner to have parental custody of their two children. The proceedings in the German court
were summary. As to what was the extent of private respondents participation in the proceedings in the
German court, the records remain unclear. The divorce decree itself states that neither has she commented on
the proceedings25 nor has she given her opinion to the Social Services Office.26 Unlike petitioner who was
represented by two lawyers, private respondent had no counsel to assist her in said proceedings.27 More
importantly, the divorce judgment was issued to petitioner by virtue of the German Civil Code provision to the
effect that when a couple lived separately for three years, the marriage is deemed irrefutably dissolved. The
decree did not touch on the issue as to who the offending spouse was. Absent any finding that private
respondent is unfit to obtain custody of the children, the trial court was correct in setting the issue for hearing to
determine the issue of parental custody, care, support and education mindful of the best interests of the
children. This is in consonance with the provision in the Child and Youth Welfare Code that the childs welfare
is always the paramount consideration in all questions concerning his care and custody. 28
On the matter of property relations, petitioner asserts that public respondent exceeded the bounds of her
jurisdiction when she claimed cognizance of the issue concerning property relations between petitioner and
private respondent. Private respondent herself has admitted in Par. 14 of her petition for declaration of nullity of
marriage dated August 26, 1996 filed with the RTC of Makati, subject of this case, that: "[p]etitioner and
respondent have not acquired any conjugal or community property nor have they incurred any debts during
their marriage."29 Herein petitioner did not contest this averment. Basic is the rule that a court shall grant relief
warranted by the allegations and the proof.30 Given the factual admission by the parties in their pleadings that
there is no property to be accounted for, respondent judge has no basis to assert jurisdiction in this case to
resolve a matter no longer deemed in controversy.
In sum, we find that respondent judge may proceed to determine the issue regarding the custody of the two
children born of the union between petitioner and private respondent. Private respondent erred, however, in
claiming cognizance to settle the matter of property relations of the parties, which is not at issue.
WHEREFORE, the orders of the Regional Trial Court of Makati, Branch 149, issued on September 30, 1999
and March 31, 2000 are AFFIRMED with MODIFICATION. We hereby declare that the trial court has
jurisdiction over the issue between the parties as to who has parental custody, including the care, support and
education of the children, namely Carolynne and Alexandra Kristine Roehr. Let the records of this case be
remanded promptly to the trial court for continuation of appropriate proceedings. No pronouncement as to
costs.
SO ORDERED.
Bellosillo, (Chairman), and Callejo, Sr., JJ., concur.
Austria-Martinez, J., on official leave.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. L-109937 March 21, 1994

DEVELOPMENT BANK OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS and the ESTATE OF THE LATE JUAN B. DANS, represented by CANDIDA G.
DANS, and the DBP MORTGAGE REDEMPTION INSURANCE POOL, respondents.
Office of the Legal Counsel for petitioner.
Reyes, Santayana, Molo & Alegre for DBP Mortgage Redemption Insurance Pool.

QUIASON, J.:

This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court to reverse and set aside
the decision of the Court of Appeals in CA-G.R CV No. 26434 and its resolution denying reconsideration
thereof.
We affirm the decision of the Court of Appeals with modification.
I
In May 1987, Juan B. Dans, together with his wife Candida, his son and daughter-in-law, applied for a loan of
P500,000.00 with the Development Bank of the Philippines (DBP), Basilan Branch. As the principal mortgagor,
Dans, then 76 years of age, was advised by DBP to obtain a mortgage redemption insurance (MRI) with the
DBP Mortgage Redemption Insurance Pool (DBP MRI Pool).
A loan, in the reduced amount of P300,000.00, was approved by DBP on August 4, 1987 and released on
August 11, 1987. From the proceeds of the loan, DBP deducted the amount of P1,476.00 as payment for the
MRI premium. On August 15, 1987, Dans accomplished and submitted the "MRI Application for Insurance" and
the "Health Statement for DBP MRI Pool."
On August 20, 1987, the MRI premium of Dans, less the DBP service fee of 10 percent, was credited by DBP
to the savings account of the DBP MRI Pool. Accordingly, the DBP MRI Pool was advised of the credit.
On September 3, 1987, Dans died of cardiac arrest. The DBP, upon notice, relayed this information to the DBP
MRI Pool. On September 23, 1987, the DBP MRI Pool notified DBP that Dans was not eligible for MRI
coverage, being over the acceptance age limit of 60 years at the time of application.
On October 21, 1987, DBP apprised Candida Dans of the disapproval of her late husband's MRI application.
The DBP offered to refund the premium of P1,476.00 which the deceased had paid, but Candida Dans refused
to accept the same, demanding payment of the face value of the MRI or an amount equivalent to the loan.
She, likewise, refused to accept an ex gratia settlement of P30,000.00, which the DBP later offered.
On February 10, 1989, respondent Estate, through Candida Dans as administratrix, filed a complaint with the
Regional Trial Court, Branch I, Basilan, against DBP and the insurance pool for "Collection of Sum of Money
with Damages." Respondent Estate alleged that Dans became insured by the DBP MRI Pool when DBP, with
full knowledge of Dans' age at the time of application, required him to apply for MRI, and later collected the
insurance premium thereon. Respondent Estate therefore prayed: (1) that the sum of P139,500.00, which it
paid under protest for the loan, be reimbursed; (2) that the mortgage debt of the deceased be declared fully
paid; and (3) that damages be awarded.
The DBP and the DBP MRI Pool separately filed their answers, with the former asserting a cross-claim against
the latter.
At the pre-trial, DBP and the DBP MRI Pool admitted all the documents and exhibits submitted by respondent
Estate. As a result of these admissions, the trial court narrowed down the issues and, without opposition from
the parties, found the case ripe for summary judgment. Consequently, the trial court ordered the parties to
submit their respective position papers and documentary evidence, which may serve as basis for the judgment.
On March 10, 1990, the trial court rendered a decision in favor of respondent Estate and against DBP. The
DBP MRI Pool, however, was absolved from liability, after the trial court found no privity of contract between it
and the deceased. The trial court declared DBP in estoppel for having led Dans into applying for MRI and
actually collecting the premium and the service fee, despite knowledge of his age ineligibility. The dispositive
portion of the decision read as follows:

WHEREFORE, in view of the foregoing consideration and in the furtherance of justice and
equity, the Court finds judgment for the plaintiff and against Defendant DBP, ordering the latter:
1. To return and reimburse plaintiff the amount of P139,500.00 plus legal rate of interest as
amortization payment paid under protest;
2. To consider the mortgage loan of P300,000.00 including all interest accumulated or otherwise
to have been settled, satisfied or set-off by virtue of the insurance coverage of the late Juan B.
Dans;
3. To pay plaintiff the amount of P10,000.00 as attorney's fees;
4. To pay plaintiff in the amount of P10,000.00 as costs of litigation and other expenses, and
other relief just and equitable.
The Counterclaims of Defendants DBP and DBP MRI POOL are hereby dismissed. The Crossclaim of Defendant DBP is likewise dismissed (Rollo, p. 79)
The DBP appealed to the Court of Appeals. In a decision dated September 7, 1992, the appellate court
affirmedin toto the decision of the trial court. The DBP's motion for reconsideration was denied in a resolution
dated April 20, 1993.
Hence, this recourse.
II
When Dans applied for MRI, he filled up and personally signed a "Health Statement for DBP MRI Pool" (Exh.
"5-Bank") with the following declaration:
I hereby declare and agree that all the statements and answers contained herein are true,
complete and correct to the best of my knowledge and belief and form part of my application for
insurance. It is understood and agreed that no insurance coverage shall be effected unless and
until this application is approved and the full premium is paid during my continued good health
(Records, p. 40).
Under the aforementioned provisions, the MRI coverage shall take effect: (1) when the application shall be
approved by the insurance pool; and (2) when the full premium is paid during the continued good health of the
applicant. These two conditions, being joined conjunctively, must concur.
Undisputably, the power to approve MRI applications is lodged with the DBP MRI Pool. The pool, however, did
not approve the application of Dans. There is also no showing that it accepted the sum of P1,476.00, which
DBP credited to its account with full knowledge that it was payment for Dan's premium. There was, as a result,
no perfected contract of insurance; hence, the DBP MRI Pool cannot be held liable on a contract that does not
exist.
The liability of DBP is another matter.
It was DBP, as a matter of policy and practice, that required Dans, the borrower, to secure MRI coverage.
Instead of allowing Dans to look for his own insurance carrier or some other form of insurance policy, DBP
compelled him to apply with the DBP MRI Pool for MRI coverage. When Dan's loan was released on August
11, 1987, DBP already deducted from the proceeds thereof the MRI premium. Four days latter, DBP made
Dans fill up and sign his application for MRI, as well as his health statement. The DBP later submitted both the

application form and health statement to the DBP MRI Pool at the DBP Main Building, Makati Metro Manila. As
service fee, DBP deducted 10 percent of the premium collected by it from Dans.
In dealing with Dans, DBP was wearing two legal hats: the first as a lender, and the second as an insurance
agent.
As an insurance agent, DBP made Dans go through the motion of applying for said insurance, thereby leading
him and his family to believe that they had already fulfilled all the requirements for the MRI and that the
issuance of their policy was forthcoming. Apparently, DBP had full knowledge that Dan's application was never
going to be approved. The maximum age for MRI acceptance is 60 years as clearly and specifically provided in
Article 1 of the Group Mortgage Redemption Insurance Policy signed in 1984 by all the insurance companies
concerned (Exh. "1-Pool").
Under Article 1987 of the Civil Code of the Philippines, "the agent who acts as such is not personally liable to
the party with whom he contracts, unless he expressly binds himself or exceeds the limits of his authority
without giving such party sufficient notice of his powers."
The DBP is not authorized to accept applications for MRI when its clients are more than 60 years of age (Exh.
"1-Pool"). Knowing all the while that Dans was ineligible for MRI coverage because of his advanced age, DBP
exceeded the scope of its authority when it accepted Dan's application for MRI by collecting the insurance
premium, and deducting its agent's commission and service fee.
The liability of an agent who exceeds the scope of his authority depends upon whether the third person is
aware of the limits of the agent's powers. There is no showing that Dans knew of the limitation on DBP's
authority to solicit applications for MRI.
If the third person dealing with an agent is unaware of the limits of the authority conferred by the principal on
the agent and he (third person) has been deceived by the non-disclosure thereof by the agent, then the latter is
liable for damages to him (V Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines,
p. 422 [1992], citing Sentencia [Cuba] of September 25, 1907). The rule that the agent is liable when he acts
without authority is founded upon the supposition that there has been some wrong or omission on his part
either in misrepresenting, or in affirming, or concealing the authority under which he assumes to act
(Francisco, V., Agency 307 [1952], citing Hall v. Lauderdale, 46 N.Y. 70, 75). Inasmuch as the non-disclosure of
the limits of the agency carries with it the implication that a deception was perpetrated on the unsuspecting
client, the provisions of Articles 19, 20 and 21 of the Civil Code of the Philippines come into play.
Article 19 provides:
Every person must, in the exercise of his rights and in the performance of his duties, act with
justice give everyone his due and observe honesty and good faith.
Article 20 provides:
Every person who, contrary to law, willfully or negligently causes damage to another, shall
indemnify the latter for the same.
Article 21 provides:
Any person, who willfully causes loss or injury to another in a manner that is contrary to morals,
good customs or public policy shall compensate the latter for the damage.

The DBP's liability, however, cannot be for the entire value of the insurance policy. To assume that were it not
for DBP's concealment of the limits of its authority, Dans would have secured an MRI from another insurance
company, and therefore would have been fully insured by the time he died, is highly speculative. Considering
his advanced age, there is no absolute certainty that Dans could obtain an insurance coverage from another
company. It must also be noted that Dans died almost immediately, i.e., on the nineteenth day after applying
for the MRI, and on the twenty-third day from the date of release of his loan.
One is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly
proved (Civil Code of the Philippines, Art. 2199). Damages, to be recoverable, must not only be capable of
proof, but must be actually proved with a reasonable degree of certainty (Refractories Corporation v.
Intermediate Appellate Court, 176 SCRA 539 [1989]; Choa Tek Hee v. Philippine Publishing Co., 34 Phil. 447
[1916]). Speculative damages are too remote to be included in an accurate estimate of damages (Sun Life
Assurance v. Rueda Hermanos, 37 Phil. 844 [1918]).
While Dans is not entitled to compensatory damages, he is entitled to moral damages. No proof of pecuniary
loss is required in the assessment of said kind of damages (Civil Code of Philippines, Art. 2216). The same
may be recovered in acts referred to in Article 2219 of the Civil Code.
The assessment of moral damages is left to the discretion of the court according to the circumstances of each
case (Civil Code of the Philippines, Art. 2216). Considering that DBP had offered to pay P30,000.00 to
respondent Estate in ex gratia settlement of its claim and that DBP's non-disclosure of the limits of its authority
amounted to a deception to its client, an award of moral damages in the amount of P50,000.00 would be
reasonable.
The award of attorney's fees is also just and equitable under the circumstances (Civil Code of the Philippines,
Article 2208 [11]).
WHEREFORE, the decision of the Court of Appeals in CA G.R.-CV
No. 26434 is MODIFIED and petitioner DBP is ORDERED: (1) to REIMBURSE respondent Estate of Juan B.
Dans the amount of P1,476.00 with legal interest from the date of the filing of the complaint until fully paid; and
(2) to PAY said Estate the amount of Fifty Thousand Pesos (P50,000.00) as moral damages and the amount of
Ten Thousand Pesos (P10,000.00) as attorney's fees. With costs against petitioner.
SO ORDERED.
Cruz, Davide, Jr., Bellosillo and Kapunan, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 146322

December 6, 2006

ERNESTO RAMAS UYPITCHING and RAMAS UYPITCHING SONS, INC., petitioners,

vs.
ERNESTO QUIAMCO, respondent.

DECISION

CORONA, J.:
Honeste vivere, non alterum laedere et jus suum cuique tribuere. To live virtuously, not to injure others and to
give everyone his due. These supreme norms of justice are the underlying principles of law and order in
society. We reaffirm them in this petition for review on certiorari assailing the July 26, 2000 decision1 and
October 18, 2000 resolution of the Court of Appeals (CA) in CA-G.R. CV No. 47571.
In 1982, respondent Ernesto C. Quiamco was approached by Juan Davalan,2 Josefino Gabutero and Raul
Generoso to amicably settle the civil aspect of a criminal case for robbery3 filed by Quiamco against them.
They surrendered to him a red Honda XL-100 motorcycle and a photocopy of its certificate of registration.
Respondent asked for the original certificate of registration but the three accused never came to see him
again. Meanwhile, the motorcycle was parked in an open space inside respondents business establishment,
Avesco-AVNE Enterprises, where it was visible and accessible to the public.
It turned out that, in October 1981, the motorcycle had been sold on installment basis to Gabutero by petitioner
Ramas Uypitching Sons, Inc., a family-owned corporation managed by petitioner Atty. Ernesto Ramas
Uypitching. To secure its payment, the motorcycle was mortgaged to petitioner corporation.4
When Gabutero could no longer pay the installments, Davalan assumed the obligation and continued the
payments. In September 1982, however, Davalan stopped paying the remaining installments and told petitioner
corporations collector, Wilfredo Verao, that the motorcycle had allegedly been "taken by respondents men."
Nine years later, on January 26, 1991, petitioner Uypitching, accompanied by policemen,5 went to AvescoAVNE Enterprises to recover the motorcycle. The leader of the police team, P/Lt. Arturo Vendiola, talked to the
clerk in charge and asked for respondent. While P/Lt. Vendiola and the clerk were talking, petitioner Uypitching
paced back and forth inside the establishment uttering "Quiamco is a thief of a motorcycle."
On learning that respondent was not in Avesco-AVNE Enterprises, the policemen left to look for respondent in
his residence while petitioner Uypitching stayed in the establishment to take photographs of the motorcycle.
Unable to find respondent, the policemen went back to Avesco-AVNE Enterprises and, on petitioner
Uypitchings instruction and over the clerks objection, took the motorcycle.
On February 18, 1991, petitioner Uypitching filed a criminal complaint for qualified theft and/or violation of the
Anti-Fencing Law6 against respondent in the Office of the City Prosecutor of Dumaguete City.7 Respondent
moved for dismissal because the complaint did not charge an offense as he had neither stolen nor bought the
motorcycle. The Office of the City Prosecutor dismissed the complaint8 and denied petitioner Uypitchings
subsequent motion for reconsideration.
Respondent filed an action for damages against petitioners in the RTC of Dumaguete City, Negros Oriental,
Branch 37.9 He sought to hold the petitioners liable for the following: (1) unlawful taking of the motorcycle; (2)
utterance of a defamatory remark (that respondent was a thief) and (3) precipitate filing of a baseless and
malicious complaint. These acts humiliated and embarrassed the respondent and injured his reputation and
integrity.

On July 30, 1994, the trial court rendered a decision10 finding that petitioner Uypitching was motivated with
malice and ill will when he called respondent a thief, took the motorcycle in an abusive manner and filed a
baseless complaint for qualified theft and/or violation of the Anti-Fencing Law. Petitioners acts were found to
be contrary to Articles 1911 and 2012 of the Civil Code. Hence, the trial court held petitioners liable to respondent
for P500,000 moral damages, P200,000 exemplary damages and P50,000 attorneys fees plus costs.
Petitioners appealed the RTC decision but the CA affirmed the trial courts decision with modification, reducing
the award of moral and exemplary damages to P300,000 and P100,000, respectively.13 Petitioners sought
reconsideration but it was denied. Thus, this petition.
In their petition and memorandum, petitioners submit that the sole (allegedly) issue to be resolved here is
whether the filing of a complaint for qualified theft and/or violation of the Anti-Fencing Law in the Office of the
City Prosecutor warranted the award of moral damages, exemplary damages, attorneys fees and costs in
favor of respondent.
Petitioners suggestion is misleading. They were held liable for damages not only for instituting a groundless
complaint against respondent but also for making a slanderous remark and for taking the motorcycle from
respondents establishment in an abusive manner.
Correctness of the Findings of the RTC and CA
As they never questioned the findings of the RTC and CA that malice and ill will attended not only the public
imputation of a crime to respondent14 but also the taking of the motorcycle, petitioners were deemed to have
accepted the correctness of such findings. This alone was sufficient to hold petitioners liable for damages to
respondent.
Nevertheless, to address petitioners concern, we also find that the trial and appellate courts correctly ruled
that the filing of the complaint was tainted with malice and bad faith. Petitioners themselves in fact described
their action as a "precipitate act."15 Petitioners were bent on portraying respondent as a thief. In this
connection, we quote with approval the following findings of the RTC, as adopted by the CA:
x x x There was malice or ill-will [in filing the complaint before the City Prosecutors Office] because
Atty. Ernesto Ramas Uypitching knew or ought to have known as he is a lawyer, that there was no
probable cause at all for filing a criminal complaint for qualified theft and fencing activity against
[respondent]. Atty. Uypitching had no personal knowledge that [respondent] stole the motorcycle in
question. He was merely told by his bill collector ([i.e.] the bill collector of Ramas Uypitching Sons, Inc.)
[,] Wilfredo Verao[,] that Juan Dabalan will [no longer] pay the remaining installment(s) for the
motorcycle because the motorcycle was taken by the men of [respondent]. It must be noted that the
term used by Wilfredo Verao in informing Atty. Ernesto Ramas Uypitching of the refusal of Juan
Dabalan to pay for the remaining installment was []taken[], not []unlawfully taken[] or stolen. Yet,
despite the double hearsay, Atty. Ernesto Ramas Uypitching not only executed the [complaint-affidavit]
wherein he named [respondent] as the suspect of the stolen motorcycle but also charged [respondent]
of qualified theft and fencing activity before the City [Prosecutors] Office of Dumaguete. The absence
of probable cause necessarily signifies the presence of malice. What is deplorable in all these is that
Juan Dabalan, the owner of the motorcycle, did not accuse [respondent] or the latters men of stealing
the motorcycle[,] much less bother[ed] to file a case for qualified theft before the authorities. That Atty.
Uypitchings act in charging [respondent] with qualified theft and fencing activity is tainted with malice is
also shown by his answer to the question of Cupid Gonzaga16[during one of their conversations] - "why
should you still file a complaint? You have already recovered the motorcycle"[:] "Aron motagam ang
kawatan ug motor." ("To teach a lesson to the thief of motorcycle.")17
Moreover, the existence of malice, ill will or bad faith is a factual matter. As a rule, findings of fact of the trial
court, when affirmed by the appellate court, are conclusive on this Court. We see no compelling reason to
reverse the findings of the RTC and the CA.

Petitioners Abused Their Right of Recovery as Mortgagee(s)

Petitioners claim that they should not be held liable for petitioner corporations exercise of its right as sellermortgagee to recover the mortgaged vehicle preliminary to the enforcement of its right to foreclose on the
mortgage in case of default. They are clearly mistaken.
True, a mortgagee may take steps to recover the mortgaged property to enable it to enforce or protect its
foreclosure right thereon. There is, however, a well-defined procedure for the recovery of possession of
mortgaged property: if a mortgagee is unable to obtain possession of a mortgaged property for its sale on
foreclosure, he must bring a civil action either to recover such possession as a preliminary step to the sale, or
to obtain judicial foreclosure.18
Petitioner corporation failed to bring the proper civil action necessary to acquire legal possession of the
motorcycle. Instead, petitioner Uypitching descended on respondents establishment with his policemen and
ordered the seizure of the motorcycle without a search warrant or court order. Worse, in the course of the
illegal seizure of the motorcycle, petitioner Uypitching even mouthed a slanderous statement.
No doubt, petitioner corporation, acting through its co-petitioner Uypitching, blatantly disregarded the lawful
procedure for the enforcement of its right, to the prejudice of respondent. Petitioners acts violated the law as
well as public morals, and transgressed the proper norms of human relations.
The basic principle of human relations, embodied in Article 19 of the Civil Code, provides:
Art. 19. Every person must in the exercise of his rights and in the performance of his duties, act with
justice, give every one his due, and observe honesty and good faith.
Article 19, also known as the "principle of abuse of right," prescribes that a person should not use his right
unjustly or contrary to honesty and good faith, otherwise he opens himself to liability.19 It seeks to preclude the
use of, or the tendency to use, a legal right (or duty) as a means to unjust ends.
There is an abuse of right when it is exercised solely to prejudice or injure another.20 The exercise of a right
must be in accordance with the purpose for which it was established and must not be excessive or unduly
harsh; there must be no intention to harm another.21 Otherwise, liability for damages to the injured party will
attach.
In this case, the manner by which the motorcycle was taken at petitioners instance was not only attended by
bad faith but also contrary to the procedure laid down by law. Considered in conjunction with the defamatory
statement, petitioners exercise of the right to recover the mortgaged vehicle was utterly prejudicial and
injurious to respondent. On the other hand, the precipitate act of filing an unfounded complaint could not in any
way be considered to be in accordance with the purpose for which the right to prosecute a crime was
established. Thus, the totality of petitioners actions showed a calculated design to embarrass, humiliate and
publicly ridicule respondent. Petitioners acted in an excessively harsh fashion to the prejudice of respondent.
Contrary to law, petitioners willfully caused damage to respondent. Hence, they should indemnify him.22
WHEREFORE, the petition is hereby DENIED. The July 26, 2000 decision and October 18, 2000 resolution of
the Court of Appeals in CA-G.R. CV No. 47571 are AFFIRMED.
Triple costs against petitioners, considering that petitioner Ernesto Ramas Uypitching is a lawyer and an officer
of the court, for his improper behavior.
SO ORDERED.
Puno, J., Chairperson, Sandoval-Gutierrez, Azcuna and Garcia, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-20089

December 26, 1964

BEATRIZ P. WASSMER, plaintiff-appellee,

vs.
FRANCISCO X. VELEZ, defendant-appellant.
Jalandoni & Jamir for defendant-appellant.
Samson S. Alcantara for plaintiff-appellee.
BENGZON, J.P., J.:
The facts that culminated in this case started with dreams and hopes, followed by appropriate planning and
serious endeavors, but terminated in frustration and, what is worse, complete public humiliation.
Francisco X. Velez and Beatriz P. Wassmer, following their mutual promise of love, decided to get married and
set September 4, 1954 as the big day. On September 2, 1954 Velez left this note for his bride-to-be:
Dear Bet
Will have to postpone wedding My mother opposes it. Am leaving on the Convair today.
Please do not ask too many people about the reason why That would only create a scandal.
Paquing
But the next day, September 3, he sent her the following telegram:
NOTHING CHANGED REST ASSURED RETURNING VERY SOON APOLOGIZE MAMA PAPA
LOVE .
PAKING
Thereafter Velez did not appear nor was he heard from again.
Sued by Beatriz for damages, Velez filed no answer and was declared in default. Plaintiff adduced evidence
before the clerk of court as commissioner, and on April 29, 1955, judgment was rendered ordering defendant to
pay plaintiff P2,000.00 as actual damages; P25,000.00 as moral and exemplary damages; P2,500.00 as
attorney's fees; and the costs.
On June 21, 1955 defendant filed a "petition for relief from orders, judgment and proceedings and motion for
new trial and reconsideration." Plaintiff moved to strike it cut. But the court, on August 2, 1955, ordered the
parties and their attorneys to appear before it on August 23, 1955 "to explore at this stage of the proceedings
the possibility of arriving at an amicable settlement." It added that should any of them fail to appear "the
petition for relief and the opposition thereto will be deemed submitted for resolution."
On August 23, 1955 defendant failed to appear before court. Instead, on the following day his counsel filed a
motion to defer for two weeks the resolution on defendants petition for relief. The counsel stated that he would
confer with defendant in Cagayan de Oro City the latter's residence on the possibility of an amicable
element. The court granted two weeks counted from August 25, 1955.
Plaintiff manifested on June 15, 1956 that the two weeks given by the court had expired on September 8, 1955
but that defendant and his counsel had failed to appear.

Another chance for amicable settlement was given by the court in its order of July 6, 1956 calling the parties
and their attorneys to appear on July 13, 1956. This time. however, defendant's counsel informed the court that
chances of settling the case amicably were nil.
On July 20, 1956 the court issued an order denying defendant's aforesaid petition. Defendant has appealed to
this Court. In his petition of June 21, 1955 in the court a quo defendant alleged excusable negligence as
ground to set aside the judgment by default. Specifically, it was stated that defendant filed no answer in the
belief that an amicable settlement was being negotiated.
A petition for relief from judgment on grounds of fraud, accident, mistake or excusable negligence, must be
duly supported by an affidavit of merits stating facts constituting a valid defense. (Sec. 3, Rule 38, Rules of
Court.) Defendant's affidavit of merits attached to his petition of June 21, 1955 stated: "That he has a good and
valid defense against plaintiff's cause of action, his failure to marry the plaintiff as scheduled having been due
to fortuitous event and/or circumstances beyond his control." An affidavit of merits like this stating mere
conclusions or opinions instead of facts is not valid. (Cortes vs. Co Bun Kim, L-3926, Oct. 10, 1951; Vaswani
vs. P. Tarrachand Bros., L-15800, December 29, 1960.)
Defendant, however, would contend that the affidavit of merits was in fact unnecessary, or a mere surplusage,
because the judgment sought to be set aside was null and void, it having been based on evidence adduced
before the clerk of court. In Province of Pangasinan vs. Palisoc, L-16519, October 30, 1962, this Court pointed
out that the procedure of designating the clerk of court as commissioner to receive evidence is sanctioned by
Rule 34 (now Rule 33) of the Rules of Court. Now as to defendant's consent to said procedure, the same did
not have to be obtained for he was declared in default and thus had no standing in court (Velez vs. Ramas, 40
Phil. 787; Alano vs. Court of First Instance, L-14557, October 30, 1959).
In support of his "motion for new trial and reconsideration," defendant asserts that the judgment is contrary to
law. The reason given is that "there is no provision of the Civil Code authorizing" an action for breach of
promise to marry. Indeed, our ruling in Hermosisima vs. Court of Appeals (L-14628, Sept. 30, 1960), as
reiterated in Estopa vs. Biansay (L-14733, Sept. 30, 1960), is that "mere breach of a promise to marry" is not
an actionable wrong. We pointed out that Congress deliberately eliminated from the draft of the new Civil Code
the provisions that would have it so.
It must not be overlooked, however, that the extent to which acts not contrary to law may be perpetrated with
impunity, is not limitless for Article 21 of said Code provides that "any person who wilfully causes loss or injury
to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for
the damage."
The record reveals that on August 23, 1954 plaintiff and defendant applied for a license to contract marriage,
which was subsequently issued (Exhs. A, A-1). Their wedding was set for September 4, 1954. Invitations were
printed and distributed to relatives, friends and acquaintances (Tsn., 5; Exh. C). The bride-to-be's trousseau,
party drsrses and other apparel for the important occasion were purchased (Tsn., 7-8). Dresses for the maid of
honor and the flower girl were prepared. A matrimonial bed, with accessories, was bought. Bridal showers were
given and gifts received (Tsn., 6; Exh. E). And then, with but two days before the wedding, defendant, who was
then 28 years old,: simply left a note for plaintiff stating: "Will have to postpone wedding My mother opposes
it ... " He enplaned to his home city in Mindanao, and the next day, the day before the wedding, he wired
plaintiff: "Nothing changed rest assured returning soon." But he never returned and was never heard from
again.
Surely this is not a case of mere breach of promise to marry. As stated, mere breach of promise to marry is not
an actionable wrong. But to formally set a wedding and go through all the above-described preparation and
publicity, only to walk out of it when the matrimony is about to be solemnized, is quite different. This is palpably

and unjustifiably contrary to good customs for which defendant must be held answerable in damages in
accordance with Article 21 aforesaid.
Defendant urges in his afore-stated petition that the damages awarded were excessive. No question is raised
as to the award of actual damages. What defendant would really assert hereunder is that the award of moral
and exemplary damages, in the amount of P25,000.00, should be totally eliminated.
Per express provision of Article 2219 (10) of the New Civil Code, moral damages are recoverable in the cases
mentioned in Article 21 of said Code. As to exemplary damages, defendant contends that the same could not
be adjudged against him because under Article 2232 of the New Civil Code the condition precedent is that "the
defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." The argument is devoid
of merit as under the above-narrated circumstances of this case defendant clearly acted in a "wanton ... ,
reckless [and] oppressive manner." This Court's opinion, however, is that considering the particular
circumstances of this case, P15,000.00 as moral and exemplary damages is deemed to be a reasonable
award.
PREMISES CONSIDERED, with the above-indicated modification, the lower court's judgment is hereby
affirmed, with costs.
Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala, Makalintal, and Zaldivar,
JJ.,concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 154259

February 28, 2005

NIKKO HOTEL MANILA GARDEN and RUBY LIM, petitioners,

vs.
ROBERTO REYES, a.k.a. "AMAY BISAYA," respondent.
DECISION
CHICO-NAZARIO, J.:
In this petition for review on certiorari, petitioners Nikko Hotel Manila Garden (Hotel Nikko)1 and Ruby Lim
assail the Decision2 of the Court of Appeals dated 26 November 2001 reversing the Decision3 of the Regional
Trial Court (RTC) of Quezon City, Branch 104, as well as the Resolution4 of the Court of Appeals dated 09 July
2002 which denied petitioners motion for reconsideration.
The cause of action before the trial court was one for damages brought under the human relations provisions
of the New Civil Code. Plaintiff thereat (respondent herein) Roberto Reyes, more popularly known by the
screen name "Amay Bisaya," alleged that at around 6:00 oclock in the evening of 13 October 1994, while he
was having coffee at the lobby of Hotel Nikko,5 he was spotted by his friend of several years, Dr. Violeta Filart,
who then approached him.6 Mrs. Filart invited him to join her in a party at the hotels penthouse in celebration
of the natal day of the hotels manager, Mr. Masakazu Tsuruoka.7 Mr. Reyes asked if she could vouch for him
for which she replied: "of course."8 Mr. Reyes then went up with the party of Dr. Filart carrying the basket of
fruits which was the latters present for the celebrant.9 At the penthouse, they first had their picture taken with
the celebrant after which Mr. Reyes sat with the party of Dr. Filart.10 After a couple of hours, when the buffet
dinner was ready, Mr. Reyes lined-up at the buffet table but, to his great shock, shame and embarrassment, he
was stopped by petitioner herein, Ruby Lim, who claimed to speak for Hotel Nikko as Executive Secretary
thereof.11 In a loud voice and within the presence and hearing of the other guests who were making a queue at
the buffet table, Ruby Lim told him to leave the party ("huwag ka nang kumain, hindi ka imbitado, bumaba ka
na lang").12 Mr. Reyes tried to explain that he was invited by Dr. Filart.13 Dr. Filart, who was within hearing
distance, however, completely ignored him thus adding to his shame and humiliation.14 Not long after, while he
was still recovering from the traumatic experience, a Makati policeman approached and asked him to step out
of the hotel.15 Like a common criminal, he was escorted out of the party by the policeman.16 Claiming damages,
Mr. Reyes asked for One Million Pesos actual damages, One Million Pesos moral and/or exemplary damages
and Two Hundred Thousand Pesos attorneys fees.17
Ruby Lim, for her part, admitted having asked Mr. Reyes to leave the party but not under the ignominious
circumstance painted by the latter. Ms. Lim narrated that she was the Hotels Executive Secretary for the past
twenty (20) years.18 One of her functions included organizing the birthday party of the hotels former General
Manager, Mr. Tsuruoka.19 The year 1994 was no different. For Mr. Tsuruokas party, Ms. Lim generated an
exclusive guest list and extended invitations accordingly.20 The guest list was limited to approximately sixty (60)
of Mr. Tsuruokas closest friends and some hotel employees and that Mr. Reyes was not one of those
invited.21 At the party, Ms. Lim first noticed Mr. Reyes at the bar counter ordering a drink.22 Mindful of Mr.
Tsuruokas wishes to keep the party intimate, Ms. Lim approached Mr. Boy Miller, the "captain waiter," to
inquire as to the presence of Mr. Reyes who was not invited.23 Mr. Miller replied that he saw Mr. Reyes with the
group of Dr. Filart.24 As Dr. Filart was engaged in conversation with another guest and as Ms. Lim did not want
to interrupt, she inquired instead from the sister of Dr. Filart, Ms. Zenaida Fruto, who told her that Dr. Filart did

not invite Mr. Reyes.25 Ms. Lim then requested Ms. Fruto to tell Mr. Reyes to leave the party as he was not
invited.26 Mr. Reyes, however, lingered prompting Ms. Lim to inquire from Ms. Fruto who said that Mr. Reyes
did not want to leave.27 When Ms. Lim turned around, she saw Mr. Reyes conversing with a Captain Batung
whom she later approached.28Believing that Captain Batung and Mr. Reyes knew each other, Ms. Lim
requested from him the same favor from Ms. Fruto, i.e., for Captain Batung to tell Mr. Reyes to leave the party
as he was not invited.29 Still, Mr. Reyes lingered. When Ms. Lim spotted Mr. Reyes by the buffet table, she
decided to speak to him herself as there were no other guests in the immediate vicinity.30 However, as Mr.
Reyes was already helping himself to the food, she decided to wait.31 When Mr. Reyes went to a corner and
started to eat, Ms. Lim approached him and said: "alam ninyo, hindo ho kayo dapat nandito. Pero total
nakakuha na ho kayo ng pagkain, ubusin na lang ninyo at pagkatapos kung pwede lang po umalis na
kayo."32 She then turned around trusting that Mr. Reyes would show enough decency to leave, but to her
surprise, he began screaming and making a big scene, and even threatened to dump food on
her.331awphi1.nt
Dr. Violeta Filart, the third defendant in the complaint before the lower court, also gave her version of the story
to the effect that she never invited Mr. Reyes to the party.34 According to her, it was Mr. Reyes who volunteered
to carry the basket of fruits intended for the celebrant as he was likewise going to take the elevator, not to the
penthouse but to Altitude 49.35 When they reached the penthouse, she reminded Mr. Reyes to go down as he
was not properly dressed and was not invited.36 All the while, she thought that Mr. Reyes already left the place,
but she later saw him at the bar talking to Col. Batung.37 Then there was a commotion and she saw Mr. Reyes
shouting.38 She ignored Mr. Reyes.39 She was embarrassed and did not want the celebrant to think that she
invited him.40
After trial on the merits, the court a quo dismissed the complaint,41 giving more credence to the testimony of
Ms. Lim that she was discreet in asking Mr. Reyes to leave the party. The trial court likewise ratiocinated that
Mr. Reyes assumed the risk of being thrown out of the party as he was uninvited:
Plaintiff had no business being at the party because he was not a guest of Mr. Tsuruoka, the birthday
celebrant. He assumed the risk of being asked to leave for attending a party to which he was not invited by the
host. Damages are pecuniary consequences which the law imposes for the breach of some duty or the
violation of some right. Thus, no recovery can be had against defendants Nikko Hotel and Ruby Lim because
he himself was at fault (Garciano v. Court of Appeals, 212 SCRA 436). He knew that it was not the party of
defendant Violeta Filart even if she allowed him to join her and took responsibility for his attendance at the
party. His action against defendants Nikko Hotel and Ruby Lim must therefore fail.42
On appeal, the Court of Appeals reversed the ruling of the trial court as it found more commanding of belief the
testimony of Mr. Reyes that Ms. Lim ordered him to leave in a loud voice within hearing distance of several
guests:
In putting appellant in a very embarrassing situation, telling him that he should not finish his food and to leave
the place within the hearing distance of other guests is an act which is contrary to morals, good customs . . .,
for which appellees should compensate the appellant for the damage suffered by the latter as a consequence
therefore (Art. 21, New Civil Code). The liability arises from the acts which are in themselves legal or not
prohibited, but contrary to morals or good customs. Conversely, even in the exercise of a formal right, [one]
cannot with impunity intentionally cause damage to another in a manner contrary to morals or good customs.43
The Court of Appeals likewise ruled that the actuation of Ms. Lim in approaching several people to inquire into
the presence of Mr. Reyes exposed the latter to ridicule and was uncalled for as she should have approached
Dr. Filart first and both of them should have talked to Mr. Reyes in private:
Said acts of appellee Lim are uncalled for. What should have been done by appellee Lim was to approach
appellee Mrs. Filart and together they should have told appellant Reyes in private that the latter should leave

the party as the celebrant only wanted close friends around. It is necessary that Mrs. Filart be the one to
approach appellant because it was she who invited appellant in that occasion. Were it not for Mrs. Filarts
invitation, appellant could not have suffered such humiliation. For that, appellee Filart is equally liable.
...
The acts of [appellee] Lim are causes of action which are predicated upon mere rudeness or lack of
consideration of one person, which calls not only protection of human dignity but respect of such dignity. Under
Article 20 of the Civil Code, every person who violates this duty becomes liable for damages, especially if said
acts were attended by malice or bad faith. Bad faith does not simply connote bad judgment or simple
negligence. It imports a dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach
of a known duty to some motive or interest or ill-will that partakes of the nature of fraud (Cojuangco, Jr. v. CA,
et al., 309 SCRA 603).44
Consequently, the Court of Appeals imposed upon Hotel Nikko, Ruby Lim and Dr. Violeta Filart the solidary
obligation to pay Mr. Reyes (1) exemplary damages in the amount of Two Hundred Thousand Pesos
(P200,000); (2) moral damages in the amount of Two Hundred Thousand Pesos (P200,000); and (3) attorneys
fees in the amount of Ten Thousand Pesos (P10,000).45 On motion for reconsideration, the Court of Appeals
affirmed its earlier decision as the argument raised in the motion had "been amply discussed and passed upon
in the decision sought to be reconsidered."46
Thus, the instant petition for review. Hotel Nikko and Ruby Lim contend that the Court of Appeals seriously
erred in
I.
NOT APPLYING THE DOCTRINE OF VOLENTI NON FIT INJURIA CONSIDERING THAT BY ITS OWN
FINDINGS, AMAY BISAYA WAS A GATE-CRASHER
II.
HOLDING HOTEL NIKKO AND RUBY LIM JOINTLY AND SEVERALLY LIABLE WITH DR. FILART FOR
DAMAGES SINCE BY ITS OWN RULING, AMAY BISAYA "COULD NOT HAVE SUFFERED SUCH
HUMILIATION," "WERE IT NOT FOR DR. FILARTS INVITATION"
III.
DEPARTING FROM THE FINDINGS OF FACT OF THE TRIAL COURT AS REGARDS THE
CIRCUMSTANCES THAT ALLEGEDLY CAUSED THE HUMILIATION OF AMAY BISAYA
IV.
IN CONCLUDING THAT AMAY BISAYA WAS TREATED UNJUSTLY BECAUSE OF HIS POVERTY,
CONSIDERING THAT THIS WAS NEVER AN ISSUE AND NO EVIDENCE WAS PRESENTED IN THIS
REGARD
V.
IN FAILING TO PASS UPON THE ISSUE ON THE DEFECTS OF THE APPELLANTS BRIEF, THEREBY
DEPARTING FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS

Petitioners Lim and Hotel Nikko contend that pursuant to the doctrine of volenti non fit injuria, they cannot be
made liable for damages as respondent Reyes assumed the risk of being asked to leave (and being
embarrassed and humiliated in the process) as he was a "gate-crasher."
The doctrine of volenti non fit injuria ("to which a person assents is not esteemed in law as injury"47 ) refers to
self-inflicted injury48 or to the consent to injury49 which precludes the recovery of damages by one who has
knowingly and voluntarily exposed himself to danger, even if he is not negligent in doing so.50 As formulated by
petitioners, however, this doctrine does not find application to the case at bar because even if respondent
Reyes assumed the risk of being asked to leave the party, petitioners, under Articles 19 and 21 of the New Civil
Code, were still under obligation to treat him fairly in order not to expose him to unnecessary ridicule and
shame.
Thus, the threshold issue is whether or not Ruby Lim acted abusively in asking Roberto Reyes, a.k.a. "Amay
Bisaya," to leave the party where he was not invited by the celebrant thereof thereby becoming liable under
Articles 19 and 21 of the Civil Code. Parenthetically, and if Ruby Lim were so liable, whether or not Hotel
Nikko, as her employer, is solidarily liable with her.
As the trial court and the appellate court reached divergent and irreconcilable conclusions concerning the
same facts and evidence of the case, this Court is left without choice but to use its latent power to review such
findings of facts. Indeed, the general rule is that we are not a trier of facts as our jurisdiction is limited to
reviewing and revising errors of law.51 One of the exceptions to this general rule, however, obtains herein as
the findings of the Court of Appeals are contrary to those of the trial court.52 The lower court ruled that Ms. Lim
did not abuse her right to ask Mr. Reyes to leave the party as she talked to him politely and discreetly. The
appellate court, on the other hand, held that Ms. Lim is liable for damages as she needlessly embarrassed Mr.
Reyes by telling him not to finish his food and to leave the place within hearing distance of the other guests.
Both courts, however, were in agreement that it was Dr. Filarts invitation that brought Mr. Reyes to the party.
The consequential question then is: Which version is credible?
From an in depth review of the evidence, we find more credible the lower courts findings of fact.
First, let us put things in the proper perspective.
We are dealing with a formal party in a posh, five-star hotel,53 for-invitation-only, thrown for the hotels former
Manager, a Japanese national. Then came a person who was clearly uninvited (by the celebrant)54 and who
could not just disappear into the crowd as his face is known by many, being an actor. While he was already
spotted by the organizer of the party, Ms. Lim, the very person who generated the guest list, it did not yet
appear that the celebrant was aware of his presence. Ms. Lim, mindful of the celebrants instruction to keep the
party intimate, would naturally want to get rid of the "gate-crasher" in the most hush-hush manner in order not
to call attention to a glitch in an otherwise seamless affair and, in the process, risk the displeasure of the
celebrant, her former boss. To unnecessarily call attention to the presence of Mr. Reyes would certainly reflect
badly on Ms. Lims ability to follow the instructions of the celebrant to invite only his close friends and some of
the hotels personnel. Mr. Reyes, upon whom the burden rests to prove that indeed Ms. Lim loudly and rudely
ordered him to leave, could not offer any satisfactory explanation why Ms. Lim would do that and risk ruining a
formal and intimate affair. On the contrary, Mr. Reyes, on cross-examination, had unwittingly sealed his fate by
admitting that when Ms. Lim talked to him, she was very close. Close enough for him to kiss:
Q: And, Mr. Reyes, you testified that Miss Lim approached you while you were at the buffet table? How
close was she when she approached you?
A: Very close because we nearly kissed each other.

Q: And yet, she shouted for you to go down? She was that close and she shouted?
A: Yes. She said, "wag kang kumain, hindi ka imbitado dito, bumaba ka na lang."
Q: So, you are testifying that she did this in a loud voice?
...
A: Yes. If it is not loud, it will not be heard by many.55
In the absence of any proof of motive on the part of Ms. Lim to humiliate Mr. Reyes and expose him to ridicule
and shame, it is highly unlikely that she would shout at him from a very close distance. Ms. Lim having been in
the hotel business for twenty years wherein being polite and discreet are virtues to be emulated, the testimony
of Mr. Reyes that she acted to the contrary does not inspire belief and is indeed incredible. Thus, the lower
court was correct in observing that
Considering the closeness of defendant Lim to plaintiff when the request for the latter to leave the party was
made such that they nearly kissed each other, the request was meant to be heard by him only and there could
have been no intention on her part to cause embarrassment to him. It was plaintiffs reaction to the request that
must have made the other guests aware of what transpired between them. . .
Had plaintiff simply left the party as requested, there was no need for the police to take him out.56
Moreover, another problem with Mr. Reyess version of the story is that it is unsupported. It is a basic rule in
civil cases that he who alleges proves. Mr. Reyes, however, had not presented any witness to back his story
up. All his witnesses Danny Rodinas, Pepito Guerrero and Alexander Silva - proved only that it was Dr. Filart
who invited him to the party.57
Ms. Lim, not having abused her right to ask Mr. Reyes to leave the party to which he was not invited, cannot be
made liable to pay for damages under Articles 19 and 21 of the Civil Code. Necessarily, neither can her
employer, Hotel Nikko, be held liable as its liability springs from that of its employee. 58
Article 19, known to contain what is commonly referred to as the principle of abuse of rights,59 is not a panacea
for all human hurts and social grievances. Article 19 states:
Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice,
give everyone his due, and observe honesty and good faith.1awphi1.nt
Elsewhere, we explained that when "a right is exercised in a manner which does not conform with the norms
enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the
wrongdoer must be responsible."60 The object of this article, therefore, is to set certain standards which must
be observed not only in the exercise of ones rights but also in the performance of ones duties.61 These
standards are the following: act with justice, give everyone his due and observe honesty and good faith.62 Its
antithesis, necessarily, is any act evincing bad faith or intent to injure. Its elements are the following: (1) There
is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring
another.63 When Article 19 is violated, an action for damages is proper under Articles 20 or 21 of the Civil Code.
Article 20 pertains to damages arising from a violation of law64 which does not obtain herein as Ms. Lim was
perfectly within her right to ask Mr. Reyes to leave. Article 21, on the other hand, states:
Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for the damage.

Article 2165 refers to acts contra bonus mores and has the following elements: (1) There is an act which is
legal; (2) but which is contrary to morals, good custom, public order, or public policy; and (3) it is done
with intent to injure.66
A common theme runs through Articles 19 and 21,67 and that is, the act complained of must be intentional.68
As applied to herein case and as earlier discussed, Mr. Reyes has not shown that Ms. Lim was driven by
animosity against him. These two people did not know each other personally before the evening of 13 October
1994, thus, Mr. Reyes had nothing to offer for an explanation for Ms. Lims alleged abusive conduct except the
statement that Ms. Lim, being "single at 44 years old," had a "very strong bias and prejudice against (Mr.
Reyes) possibly influenced by her associates in her work at the hotel with foreign businessmen."69 The
lameness of this argument need not be belabored. Suffice it to say that a complaint based on Articles 19 and
21 of the Civil Code must necessarily fail if it has nothing to recommend it but innuendos and conjectures.
Parenthetically, the manner by which Ms. Lim asked Mr. Reyes to leave was likewise acceptable and humane
under the circumstances. In this regard, we cannot put our imprimatur on the appellate courts declaration that
Ms. Lims act of personally approaching Mr. Reyes (without first verifying from Mrs. Filart if indeed she invited
Mr. Reyes) gave rise to a cause of action "predicated upon mere rudeness or lack of consideration of one
person, which calls not only protection of human dignity but respect of such dignity."70 Without proof of any illmotive on her part, Ms. Lims act of by-passing Mrs. Filart cannot amount to abusive conduct especially
because she did inquire from Mrs. Filarts companion who told her that Mrs. Filart did not invite Mr. Reyes.71 If
at all, Ms. Lim is guilty only of bad judgment which, if done with good intentions, cannot amount to bad faith.
Not being liable for both actual and moral damages, neither can petitioners Lim and Hotel Nikko be made
answerable for exemplary damages72 especially for the reason stated by the Court of Appeals. The Court of
Appeals held
Not a few of the rich people treat the poor with contempt because of the latters lowly station in
life.l^vvphi1.net This has to be limited somewhere. In a democracy, such a limit must be established. Social
equality is not sought by the legal provisions under consideration, but due regard for decency and propriety
(Code Commission, pp. 33-34). And by way of example or correction for public good and to avert further
commission of such acts, exemplary damages should be imposed upon appellees.73
The fundamental fallacy in the above-quoted findings is that it runs counter with the very facts of the case and
the evidence on hand.l^vvphi1.net It is not disputed that at the time of the incident in question, Mr. Reyes was
"an actor of long standing; a co-host of a radio program over DZRH; a Board Member of the Music Singer
Composer (MUSICO) chaired by popular singer Imelda Papin; a showbiz Coordinator of Citizen Crime Watch;
and 1992 official candidate of the KBL Party for Governor of Bohol; and an awardee of a number of
humanitarian organizations of the Philippines."74 During his direct examination on rebuttal, Mr. Reyes stressed
that he had income75 and nowhere did he say otherwise. On the other hand, the records are bereft of any
information as to the social and economic standing of petitioner Ruby Lim. Consequently, the conclusion
reached by the appellate court cannot withstand scrutiny as it is without basis.
All told, and as far as Ms. Lim and Hotel Nikko are concerned, any damage which Mr. Reyes might have
suffered through Ms. Lims exercise of a legitimate right done within the bounds of propriety and good faith,
must be his to bear alone.
WHEREFORE, premises considered, the petition filed by Ruby Lim and Nikko Hotel Manila Garden is
GRANTED. The Decision of the Court of Appeals dated 26 November 2001 and its Resolution dated 09 July
2002 are hereby REVERSED and SET ASIDE. The Decision of the Regional Trial Court of Quezon City,
Branch 104, dated 26 April 1999 is hereby AFFIRMED. No costs.

SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 97336 February 19, 1993

GASHEM SHOOKAT BAKSH, petitioner,
vs.
HON. COURT OF APPEALS and MARILOU T. GONZALES, respondents.
Public Attorney's Office for petitioner.
Corleto R. Castro for private respondent.

DAVIDE, JR., J.:

This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to review and set aside the
Decision 1of the respondent Court of Appeals in CA-G.R. CV No. 24256 which affirmed in toto the 16 October
1939 Decision of Branch 38 (Lingayen) of the Regional Trial Court (RTC) of Pangasinan in Civil Case No.
16503. Presented is the issue of whether or not damages may be recovered for a breach of promise to marry
on the basis of Article 21 of the Civil Code of the Philippines.
The antecedents of this case are not complicated:
On 27 October 1987, private respondent, without the assistance of counsel, filed with the aforesaid trial court a
complaint 2 for damages against the petitioner for the alleged violation of their agreement to get married. She
alleges in said complaint that: she is twenty-two (22) years old, single, Filipino and a pretty lass of good moral
character and reputation duly respected in her community; petitioner, on the other hand, is an Iranian citizen
residing at the Lozano Apartments, Guilig, Dagupan City, and is an exchange student taking a medical course

at the Lyceum Northwestern Colleges in Dagupan City; before 20 August 1987, the latter courted and
proposed to marry her; she accepted his love on the condition that they would get married; they therefore
agreed to get married after the end of the school semester, which was in October of that year; petitioner then
visited the private respondent's parents in Baaga, Bugallon, Pangasinan to secure their approval to the
marriage; sometime in 20 August 1987, the petitioner forced her to live with him in the Lozano Apartments; she
was a virgin before she began living with him; a week before the filing of the complaint, petitioner's attitude
towards her started to change; he maltreated and threatened to kill her; as a result of such maltreatment, she
sustained injuries; during a confrontation with a representative of the barangay captain of Guilig a day before
the filing of the complaint, petitioner repudiated their marriage agreement and asked her not to live with him
anymore and; the petitioner is already married to someone living in Bacolod City. Private respondent then
prayed for judgment ordering the petitioner to pay her damages in the amount of not less than P45,000.00,
reimbursement for actual expenses amounting to P600.00, attorney's fees and costs, and granting her such
other relief and remedies as may be just and equitable. The complaint was docketed as Civil Case No. 16503.
In his Answer with Counterclaim, 3 petitioner admitted only the personal circumstances of the parties as averred
in the complaint and denied the rest of the allegations either for lack of knowledge or information sufficient to
form a belief as to the truth thereof or because the true facts are those alleged as his Special and Affirmative
Defenses. He thus claimed that he never proposed marriage to or agreed to be married with the private
respondent; he neither sought the consent and approval of her parents nor forced her to live in his apartment;
he did not maltreat her, but only told her to stop coming to his place because he discovered that she had
deceived him by stealing his money and passport; and finally, no confrontation took place with a representative
of the barangay captain. Insisting, in his Counterclaim, that the complaint is baseless and unfounded and that
as a result thereof, he was unnecessarily dragged into court and compelled to incur expenses, and has
suffered mental anxiety and a besmirched reputation, he prayed for an award of P5,000.00 for miscellaneous
expenses and P25,000.00 as moral damages.
After conducting a pre-trial on 25 January 1988, the trial court issued a Pre-Trial Order 4 embodying the
stipulated facts which the parties had agreed upon, to wit:
1. That the plaintiff is single and resident (sic) of Baaga, Bugallon, Pangasinan, while the
defendant is single, Iranian citizen and resident (sic) of Lozano Apartment, Guilig, Dagupan City
since September 1, 1987 up to the present;
2. That the defendant is presently studying at Lyceum Northwestern, Dagupan City, College of
Medicine, second year medicine proper;
3. That the plaintiff is (sic) an employee at Mabuhay Luncheonette , Fernandez Avenue,
Dagupan City since July, 1986 up to the present and a (sic) high school graduate;
4. That the parties happened to know each other when the manager of the Mabuhay
Luncheonette, Johhny Rabino introduced the defendant to the plaintiff on August 3, 1986.
After trial on the merits, the lower court, applying Article 21 of the Civil Code, rendered on 16 October 1989 a
decision 5 favoring the private respondent. The petitioner was thus ordered to pay the latter damages and
attorney's fees; the dispositive portion of the decision reads:
IN THE LIGHT of the foregoing consideration, judgment is hereby rendered in favor of the
plaintiff and against the defendant.
1. Condemning (sic) the defendant to pay the plaintiff the sum of twenty thousand (P20,000.00)
pesos as moral damages.

2. Condemning further the defendant to play the plaintiff the sum of three thousand (P3,000.00)
pesos as atty's fees and two thousand (P2,000.00) pesos at (sic) litigation expenses and to pay
the costs.
3. All other claims are denied. 6
The decision is anchored on the trial court's findings and conclusions that (a) petitioner and private respondent
were lovers, (b) private respondent is not a woman of loose morals or questionable virtue who readily submits
to sexual advances, (c) petitioner, through machinations, deceit and false pretenses, promised to marry private
respondent, d) because of his persuasive promise to marry her, she allowed herself to be deflowered by him,
(e) by reason of that deceitful promise, private respondent and her parents in accordance with Filipino
customs and traditions made some preparations for the wedding that was to be held at the end of October
1987 by looking for pigs and chickens, inviting friends and relatives and contracting sponsors, (f) petitioner did
not fulfill his promise to marry her and (g) such acts of the petitioner, who is a foreigner and who has abused
Philippine hospitality, have offended our sense of morality, good customs, culture and traditions. The trial court
gave full credit to the private respondent's testimony because, inter alia, she would not have had the temerity
and courage to come to court and expose her honor and reputation to public scrutiny and ridicule if her claim
was false. 7
The above findings and conclusions were culled from the detailed summary of the evidence for the private
respondent in the foregoing decision, digested by the respondent Court as follows:
According to plaintiff, who claimed that she was a virgin at the time and that she never had a
boyfriend before, defendant started courting her just a few days after they first met. He later
proposed marriage to her several times and she accepted his love as well as his proposal of
marriage on August 20, 1987, on which same day he went with her to her hometown of Baaga,
Bugallon, Pangasinan, as he wanted to meet her parents and inform them of their relationship
and their intention to get married. The photographs Exhs. "A" to "E" (and their submarkings) of
defendant with members of plaintiff's family or with plaintiff, were taken that day. Also on that
occasion, defendant told plaintiffs parents and brothers and sisters that he intended to marry her
during the semestral break in October, 1987, and because plaintiff's parents thought he was
good and trusted him, they agreed to his proposal for him to marry their daughter, and they
likewise allowed him to stay in their house and sleep with plaintiff during the few days that they
were in Bugallon. When plaintiff and defendant later returned to Dagupan City, they continued to
live together in defendant's apartment. However, in the early days of October, 1987, defendant
would tie plaintiff's hands and feet while he went to school, and he even gave her medicine at 4
o'clock in the morning that made her sleep the whole day and night until the following day. As a
result of this live-in relationship, plaintiff became pregnant, but defendant gave her some
medicine to abort the fetus. Still plaintiff continued to live with defendant and kept reminding him
of his promise to marry her until he told her that he could not do so because he was already
married to a girl in Bacolod City. That was the time plaintiff left defendant, went home to her
parents, and thereafter consulted a lawyer who accompanied her to the barangay captain in
Dagupan City. Plaintiff, her lawyer, her godmother, and a barangay tanod sent by the barangay
captain went to talk to defendant to still convince him to marry plaintiff, but defendant insisted
that he could not do so because he was already married to a girl in Bacolod City, although the
truth, as stipulated by the parties at the pre-trial, is that defendant is still single.
Plaintiff's father, a tricycle driver, also claimed that after defendant had informed them of his
desire to marry Marilou, he already looked for sponsors for the wedding, started preparing for
the reception by looking for pigs and chickens, and even already invited many relatives and
friends to the forthcoming wedding. 8

Petitioner appealed the trial court's decision to the respondent Court of Appeals which docketed the case as
CA-G.R. CV No. 24256. In his Brief, 9 he contended that the trial court erred (a) in not dismissing the case for
lack of factual and legal basis and (b) in ordering him to pay moral damages, attorney's fees, litigation
expenses and costs.
On 18 February 1991, respondent Court promulgated the challenged decision 10 affirming in toto the trial
court's ruling of 16 October 1989. In sustaining the trial court's findings of fact, respondent Court made the
following analysis:
First of all, plaintiff, then only 21 years old when she met defendant who was already 29 years
old at the time, does not appear to be a girl of loose morals. It is uncontradicted that she was a
virgin prior to her unfortunate experience with defendant and never had boyfriend. She is, as
described by the lower court, a barrio lass "not used and accustomed to trend of modern urban
life", and certainly would (sic) not have allowed
"herself to be deflowered by the defendant if there was no persuasive promise made by the
defendant to marry her." In fact, we agree with the lower court that plaintiff and defendant must
have been sweethearts or so the plaintiff must have thought because of the deception of
defendant, for otherwise, she would not have allowed herself to be photographed with
defendant in public in so (sic) loving and tender poses as those depicted in the pictures Exhs.
"D" and "E". We cannot believe, therefore, defendant's pretense that plaintiff was a nobody to
him except a waitress at the restaurant where he usually ate. Defendant in fact admitted that he
went to plaintiff's hometown of Baaga, Bugallon, Pangasinan, at least thrice; at (sic) the town
fiesta on February 27, 1987 (p. 54, tsn May 18, 1988), at (sic) a beach party together with the
manager and employees of the Mabuhay Luncheonette on March 3, 1987 (p. 50, tsn id.), and
on April 1, 1987 when he allegedly talked to plaintiff's mother who told him to marry her
daughter (pp. 55-56, tsn id.). Would defendant have left Dagupan City where he was involved in
the serious study of medicine to go to plaintiff's hometown in Baaga, Bugallon, unless there
was (sic) some kind of special relationship between them? And this special relationship must
indeed have led to defendant's insincere proposal of marriage to plaintiff, communicated not
only to her but also to her parents, and (sic) Marites Rabino, the owner of the restaurant where
plaintiff was working and where defendant first proposed marriage to her, also knew of this love
affair and defendant's proposal of marriage to plaintiff, which she declared was the reason why
plaintiff resigned from her job at the restaurant after she had accepted defendant's proposal (pp.
6-7, tsn March 7, 1988).
Upon the other hand, appellant does not appear to be a man of good moral character and must
think so low and have so little respect and regard for Filipino women that he openly admitted
that when he studied in Bacolod City for several years where he finished his B.S. Biology before
he came to Dagupan City to study medicine, he had a common-law wife in Bacolod City. In
other words, he also lived with another woman in Bacolod City but did not marry that woman,
just like what he did to plaintiff. It is not surprising, then, that he felt so little compunction or
remorse in pretending to love and promising to marry plaintiff, a young, innocent, trustful country
girl, in order to satisfy his lust on her. 11
and then concluded:
In sum, we are strongly convinced and so hold that it was defendant-appellant's fraudulent and
deceptive protestations of love for and promise to marry plaintiff that made her surrender her
virtue and womanhood to him and to live with him on the honest and sincere belief that he
would keep said promise, and it was likewise these (sic) fraud and deception on appellant's part
that made plaintiff's parents agree to their daughter's living-in with him preparatory to their
supposed marriage. And as these acts of appellant are palpably and undoubtedly against

morals, good customs, and public policy, and are even gravely and deeply derogatory and
insulting to our women, coming as they do from a foreigner who has been enjoying the
hospitality of our people and taking advantage of the opportunity to study in one of our
institutions of learning, defendant-appellant should indeed be made, under Art. 21 of the Civil
Code of the Philippines, to compensate for the moral damages and injury that he had caused
plaintiff, as the lower court ordered him to do in its decision in this case. 12
Unfazed by his second defeat, petitioner filed the instant petition on 26 March 1991; he raises therein the
single issue of whether or not Article 21 of the Civil Code applies to the case at bar. 13
It is petitioner's thesis that said Article 21 is not applicable because he had not committed any moral wrong or
injury or violated any good custom or public policy; he has not professed love or proposed marriage to the
private respondent; and he has never maltreated her. He criticizes the trial court for liberally invoking Filipino
customs, traditions and culture, and ignoring the fact that since he is a foreigner, he is not conversant with such
Filipino customs, traditions and culture. As an Iranian Moslem, he is not familiar with Catholic and Christian
ways. He stresses that even if he had made a promise to marry, the subsequent failure to fulfill the same is
excusable or tolerable because of his Moslem upbringing; he then alludes to the Muslim Code which
purportedly allows a Muslim to take four (4) wives and concludes that on the basis thereof, the trial court erred
in ruling that he does not posses good moral character. Moreover, his controversial "common law life" is now
his legal wife as their marriage had been solemnized in civil ceremonies in the Iranian Embassy. As to his
unlawful cohabitation with the private respondent, petitioner claims that even if responsibility could be pinned
on him for the live-in relationship, the private respondent should also be faulted for consenting to an illicit
arrangement. Finally, petitioner asseverates that even if it was to be assumed arguendo that he had professed
his love to the private respondent and had also promised to marry her, such acts would not be actionable in
view of the special circumstances of the case. The mere breach of promise is not actionable. 14
On 26 August 1991, after the private respondent had filed her Comment to the petition and the petitioner had
filed his Reply thereto, this Court gave due course to the petition and required the parties to submit their
respective Memoranda, which they subsequently complied with.
As may be gleaned from the foregoing summation of the petitioner's arguments in support of his thesis, it is
clear that questions of fact, which boil down to the issue of the credibility of witnesses, are also raised. It is the
rule in this jurisdiction that appellate courts will not disturb the trial court's findings as to the credibility of
witnesses, the latter court having heard the witnesses and having had the opportunity to observe closely their
deportment and manner of testifying, unless the trial court had plainly overlooked facts of substance or value
which, if considered, might affect the result of the case. 15
Petitioner has miserably failed to convince Us that both the appellate and trial courts had overlooked any fact
of substance or values which could alter the result of the case.
Equally settled is the rule that only questions of law may be raised in a petition for review on certiorari under
Rule 45 of the Rules of Court. It is not the function of this Court to analyze or weigh all over again the evidence
introduced by the parties before the lower court. There are, however, recognized exceptions to this rule. Thus,
inMedina vs. Asistio, Jr., 16 this Court took the time, again, to enumerate these exceptions:
xxx xxx xxx
(1) When the conclusion is a finding grounded entirely on speculation, surmises or conjectures
(Joaquin v. Navarro, 93 Phil. 257 [1953]); (2) When the inference made is manifestly mistaken,
absurb or impossible (Luna v. Linatok, 74 Phil. 15 [1942]); (3) Where there is a grave abuse of
discretion (Buyco v. People, 95 Phil. 453 [1955]); (4) When the judgment is based on a
misapprehension of facts (Cruz v. Sosing,

L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting (Casica v. Villaseca, L-9590
Ap. 30, 1957; unrep.) (6) When the Court of Appeals, in making its findings, went beyond the
issues of the case and the same is contrary to the admissions of both appellate and appellee
(Evangelista v. Alto Surety and Insurance Co., 103 Phil. 401 [1958]);
(7) The findings of the Court of Appeals are contrary to those of the trial court (Garcia v. Court of
Appeals, 33 SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA 593 [1986]); (8) When the
findings of fact are conclusions without citation of specific evidence on which they are based
(Ibid.,); (9) When the facts set forth in the petition as well as in the petitioners main and reply
briefs are not disputed by the respondents (Ibid.,); and (10) The finding of fact of the Court of
Appeals is premised on the supposed absence of evidence and is contradicted by the evidence
on record (Salazar v. Gutierrez, 33 SCRA 242 [1970]).
Petitioner has not endeavored to joint out to Us the existence of any of the above quoted exceptions in this
case. Consequently, the factual findings of the trial and appellate courts must be respected.
And now to the legal issue.
The existing rule is that a breach of promise to marry per se is not an actionable wrong. 17 Congress
deliberately eliminated from the draft of the New Civil Code the provisions that would have made it so. The
reason therefor is set forth in the report of the Senate Committees on the Proposed Civil Code, from which We
quote:
The elimination of this chapter is proposed. That breach of promise to marry is not actionable
has been definitely decided in the case of De Jesus vs. Syquia. 18 The history of breach of
promise suits in the United States and in England has shown that no other action lends itself
more readily to abuse by designing women and unscrupulous men. It is this experience which
has led to the abolition of rights of action in the so-called Heart Balm suits in many of the
American states. . . . 19
This notwithstanding, the said Code contains a provision, Article 21, which is designed to expand the concept
of torts or quasi-delict in this jurisdiction by granting adequate legal remedy for the untold number of moral
wrongs which is impossible for human foresight to specifically enumerate and punish in the statute books. 20
As the Code Commission itself stated in its Report:
But the Code Commission had gone farther than the sphere of wrongs defined or determined by
positive law. Fully sensible that there are countless gaps in the statutes, which leave so many
victims of moral wrongs helpless, even though they have actually suffered material and moral
injury, the Commission has deemed it necessary, in the interest of justice, to incorporate in the
proposed Civil Code the following rule:
Art. 23. Any person who wilfully causes loss or injury to another in a manner that
is contrary to morals, good customs or public policy shall compensate the latter
for the damage.
An example will illustrate the purview of the foregoing norm: "A" seduces the nineteen-year old
daughter of "X". A promise of marriage either has not been made, or can not be proved. The girl
becomes pregnant. Under the present laws, there is no crime, as the girl is above nineteen
years of age. Neither can any civil action for breach of promise of marriage be filed. Therefore,
though the grievous moral wrong has been committed, and though the girl and family have
suffered incalculable moral damage, she and her parents cannot bring action for damages. But
under the proposed article, she and her parents would have such a right of action.

Thus at one stroke, the legislator, if the forgoing rule is approved, would vouchsafe adequate
legal remedy for that untold number of moral wrongs which it is impossible for human foresight
to provide for specifically in the statutes. 21
Article 2176 of the Civil Code, which defines a quasi-delict thus:
Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
is limited to negligent acts or omissions and excludes the notion of willfulness or intent. Quasi-delict,
known in Spanish legal treatises as culpa aquiliana, is a civil law concept while torts is an AngloAmerican or common law concept. Torts is much broader than culpa aquiliana because it includes not
only negligence, but international criminal acts as well such as assault and battery, false imprisonment
and deceit. In the general scheme of the Philippine legal system envisioned by the Commission
responsible for drafting the New Civil Code, intentional and malicious acts, with certain exceptions, are
to be governed by the Revised Penal Code while negligent acts or omissions are to be covered by
Article 2176 of the Civil Code. 22 In between these opposite spectrums are injurious acts which, in the
absence of Article 21, would have been beyond redress. Thus, Article 21 fills that vacuum. It is even
postulated that together with Articles 19 and 20 of the Civil Code, Article 21 has greatly broadened the
scope of the law on civil wrongs; it has become much more supple and adaptable than the AngloAmerican law on torts. 23
In the light of the above laudable purpose of Article 21, We are of the opinion, and so hold, that where a man's
promise to marry is in fact the proximate cause of the acceptance of his love by a woman and his
representation to fulfill that promise thereafter becomes the proximate cause of the giving of herself unto him in
a sexual congress, proof that he had, in reality, no intention of marrying her and that the promise was only a
subtle scheme or deceptive device to entice or inveigle her to accept him and to obtain her consent to the
sexual act, could justify the award of damages pursuant to Article 21 not because of such promise to marry but
because of the fraud and deceit behind it and the willful injury to her honor and reputation which followed
thereafter. It is essential, however, that such injury should have been committed in a manner contrary to
morals, good customs or public policy.
In the instant case, respondent Court found that it was the petitioner's "fraudulent and deceptive protestations
of love for and promise to marry plaintiff that made her surrender her virtue and womanhood to him and to live
with him on the honest and sincere belief that he would keep said promise, and it was likewise these fraud and
deception on appellant's part that made plaintiff's parents agree to their daughter's living-in with him
preparatory to their supposed marriage." 24 In short, the private respondent surrendered her virginity, the
cherished possession of every single Filipina, not because of lust but because of moral seduction the kind
illustrated by the Code Commission in its example earlier adverted to. The petitioner could not be held liable for
criminal seduction punished under either Article 337 or Article 338 of the Revised Penal Code because the
private respondent was above eighteen (18) years of age at the time of the seduction.
Prior decisions of this Court clearly suggest that Article 21 may be applied in a breach of promise to marry
where the woman is a victim of moral seduction. Thus, in Hermosisima vs. Court of Appeals, 25 this Court
denied recovery of damages to the woman because:
. . . we find ourselves unable to say that petitioner is morally guilty of seduction, not only
because he is approximately ten (10) years younger than the complainant who was around
thirty-six (36) years of age, and as highly enlightened as a former high school teacher and a life
insurance agent are supposed to be when she became intimate with petitioner, then a mere

apprentice pilot, but, also, because the court of first instance found that, complainant
"surrendered herself" to petitioner because, "overwhelmed by her love" for him, she "wanted to
bind" him by having a fruit of their engagement even before they had the benefit of clergy.
In Tanjanco vs. Court of Appeals, 26 while this Court likewise hinted at possible recovery if there had been
moral seduction, recovery was eventually denied because We were not convinced that such seduction existed.
The following enlightening disquisition and conclusion were made in the said case:
The Court of Appeals seem to have overlooked that the example set forth in the Code
Commission's memorandum refers to a tort upon a minor who had been seduced. The essential
feature is seduction, that in law is more than mere sexual intercourse, or a breach of a promise
of marriage; it connotes essentially the idea of deceit, enticement, superior power or abuse of
confidence on the part of the seducer to which the woman has yielded (U.S. vs. Buenaventura,
27 Phil. 121; U.S. vs. Arlante, 9 Phil. 595).
It has been ruled in the Buenaventura case (supra) that
To constitute seduction there must in all cases be some sufficient promise or
inducement and the woman must yield because of the promise or other
inducement. If she consents merely from carnal lust and the intercourse is from
mutual desire, there is no seduction (43 Cent. Dig. tit. Seduction, par. 56) She
must be induced to depart from the path of virtue by the use of some species of
arts, persuasions and wiles, which are calculated to have and do have that effect,
and which result in her person to ultimately submitting her person to the sexual
embraces of her seducer (27 Phil. 123).
And in American Jurisprudence we find:
On the other hand, in an action by the woman, the enticement, persuasion or
deception is the essence of the injury; and a mere proof of intercourse is
insufficient to warrant a recovery.
Accordingly it is not seduction where the willingness arises out of sexual desire of
curiosity of the female, and the defendant merely affords her the needed
opportunity for the commission of the act. It has been emphasized that to allow a
recovery in all such cases would tend to the demoralization of the female sex,
and would be a reward for unchastity by which a class of adventuresses would
be swift to profit. (47 Am. Jur. 662)
xxx xxx xxx
Over and above the partisan allegations, the fact stand out that for one whole year, from 1958 to
1959, the plaintiff-appellee, a woman of adult age, maintain intimate sexual relations with
appellant, with repeated acts of intercourse. Such conduct is incompatible with the idea of
seduction. Plainly there is here voluntariness and mutual passion; for had the appellant been
deceived, had she surrendered exclusively because of the deceit, artful persuasions and wiles
of the defendant, she would not have again yielded to his embraces, much less for one year,
without exacting early fulfillment of the alleged promises of marriage, and would have cut short
all sexual relations upon finding that defendant did not intend to fulfill his defendant did not
intend to fulfill his promise. Hence, we conclude that no case is made under article 21 of the
Civil Code, and no other cause of action being alleged, no error was committed by the Court of
First Instance in dismissing the complaint. 27

In his annotations on the Civil Code, 28 Associate Justice Edgardo L. Paras, who recently retired from this
Court, opined that in a breach of promise to marry where there had been carnal knowledge, moral damages
may be recovered:
. . . if there be criminal or moral seduction, but not if the intercourse was due to mutual lust.
(Hermosisima vs. Court of Appeals,
L-14628, Sept. 30, 1960; Estopa vs. Piansay, Jr., L-14733, Sept. 30, 1960; Batarra vs. Marcos,
7 Phil. 56 (sic); Beatriz Galang vs. Court of Appeals, et al., L-17248, Jan. 29, 1962). (In other
words, if the CAUSE be the promise to marry, and the EFFECT be the carnal knowledge, there
is a chance that there was criminal or moral seduction, hence recovery of moral damages will
prosper. If it be the other way around, there can be no recovery of moral damages, because
here mutual lust has intervened). . . .
together with "ACTUAL damages, should there be any, such as the expenses for the wedding
presentations (See Domalagon v. Bolifer, 33 Phil. 471).
Senator Arturo M. Tolentino 29 is also of the same persuasion:
It is submitted that the rule in Batarra vs. Marcos, 30 still subsists, notwithstanding the
incorporation of the present article 31 in the Code. The example given by the Code Commission
is correct, if there wasseduction, not necessarily in the legal sense, but in the vulgar sense of
deception. But when the sexual act is accomplished without any deceit or qualifying
circumstance of abuse of authority or influence, but the woman, already of age, has knowingly
given herself to a man, it cannot be said that there is an injury which can be the basis for
indemnity.
But so long as there is fraud, which is characterized by willfulness (sic), the action lies. The
court, however, must weigh the degree of fraud, if it is sufficient to deceive the woman under the
circumstances, because an act which would deceive a girl sixteen years of age may not
constitute deceit as to an experienced woman thirty years of age. But so long as there is a
wrongful act and a resulting injury, there should be civil liability, even if the act is not punishable
under the criminal law and there should have been an acquittal or dismissal of the criminal case
for that reason.
We are unable to agree with the petitioner's alternative proposition to the effect that granting, for argument's
sake, that he did promise to marry the private respondent, the latter is nevertheless also at fault. According to
him, both parties are in pari delicto; hence, pursuant to Article 1412(1) of the Civil Code and the doctrine laid
down in Batarra vs. Marcos, 32 the private respondent cannot recover damages from the petitioner. The latter
even goes as far as stating that if the private respondent had "sustained any injury or damage in their
relationship, it is primarily because of her own doing, 33 for:
. . . She is also interested in the petitioner as the latter will become a doctor sooner or later.
Take notice that she is a plain high school graduate and a mere employee . . . (Annex "C") or a
waitress (TSN, p. 51, January 25, 1988) in a luncheonette and without doubt, is in need of a
man who can give her economic security. Her family is in dire need of financial assistance.
(TSN, pp. 51-53, May 18, 1988). And this predicament prompted her to accept a proposition that
may have been offered by the petitioner. 34
These statements reveal the true character and motive of the petitioner. It is clear that he harbors a
condescending, if not sarcastic, regard for the private respondent on account of the latter's ignoble birth,
inferior educational background, poverty and, as perceived by him, dishonorable employment. Obviously then,
from the very beginning, he was not at all moved by good faith and an honest motive. Marrying with a woman

so circumstances could not have even remotely occurred to him. Thus, his profession of love and promise to
marry were empty words directly intended to fool, dupe, entice, beguile and deceive the poor woman into
believing that indeed, he loved her and would want her to be his life's partner. His was nothing but pure lust
which he wanted satisfied by a Filipina who honestly believed that by accepting his proffer of love and proposal
of marriage, she would be able to enjoy a life of ease and security. Petitioner clearly violated the Filipino's
concept of morality and brazenly defied the traditional respect Filipinos have for their women. It can even be
said that the petitioner committed such deplorable acts in blatant disregard of Article 19 of the Civil Code which
directs every person to act with justice, give everyone his due and observe honesty and good faith in the
exercise of his rights and in the performance of his obligations.
No foreigner must be allowed to make a mockery of our laws, customs and traditions.
The pari delicto rule does not apply in this case for while indeed, the private respondent may not have been
impelled by the purest of intentions, she eventually submitted to the petitioner in sexual congress not out of
lust, but because of moral seduction. In fact, it is apparent that she had qualms of conscience about the entire
episode for as soon as she found out that the petitioner was not going to marry her after all, she left him. She is
not, therefore, in pari delicto with the petitioner. Pari delicto means "in equal fault; in a similar offense or crime;
equal in guilt or in legal fault." 35 At most, it could be conceded that she is merely in delicto.
Equity often interferes for the relief of the less guilty of the parties, where his transgression has
been brought about by the imposition of undue influence of the party on whom the burden of the
original wrong principally rests, or where his consent to the transaction was itself procured by
fraud. 36
In Mangayao vs. Lasud, 37 We declared:
Appellants likewise stress that both parties being at fault, there should be no action by one
against the other (Art. 1412, New Civil Code). This rule, however, has been interpreted as
applicable only where the fault on both sides is, more or less, equivalent. It does not apply
where one party is literate or intelligent and the other one is not. (c.f. Bough vs. Cantiveros, 40
Phil. 209).
We should stress, however, that while We find for the private respondent, let it not be said that this Court
condones the deplorable behavior of her parents in letting her and the petitioner stay together in the same
room in their house after giving approval to their marriage. It is the solemn duty of parents to protect the honor
of their daughters and infuse upon them the higher values of morality and dignity.
WHEREFORE, finding no reversible error in the challenged decision, the instant petition is hereby DENIED,
with costs against the petitioner.
SO ORDERED.
Feliciano, Bidin, Romero and Melo, JJ., concur.
Gutierrez, Jr., J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-17396

May 30, 1962

CECILIO PE, ET AL., plaintiffs-appellants,

vs.
ALFONSO PE, defendant-appellee.
Cecilio L. Pe for and in his own behalf as plaintiff-appellant.
Leodegario L. Mogol for defendant-appellee.
BAUTISTA ANGELO, J.:
Plaintiffs brought this action before the Court of First Instance of Manila to recover moral, compensatory,
exemplary and corrective damages in the amount of P94,000.00 exclusive of attorney's fees and expenses of
litigation.
Defendant, after denying some allegations contained in the complaint, set up as a defense that the facts
alleged therein, even if true, do not constitute a valid cause of action.
After trial, the lower court, after finding that defendant had carried on a love affair with one Lolita Pe, an
unmarried woman, being a married man himself, declared that defendant cannot be held liable for moral
damages it appearing that plaintiffs failed to prove that defendant, being aware of his marital status,
deliberately and in bad faith tried to win Lolita's affection. So it rendered decision dismissing the
complaint.1wph1.t
Plaintiffs brought this case on appeal before this Court on the ground that the issues involved are purely of law.
The facts as found by the trial court are: Plaintiffs are the parents, brothers and sisters of one Lolita Pe. At the
time of her disappearance on April 14, 1957, Lolita was 24 years old and unmarried. Defendant is a married
man and works as agent of the La Perla Cigar and Cigarette Factory. He used to stay in the town of Gasan,
Marinduque, in connection with his aforesaid occupation. Lolita was staying with her parents in the same town.
Defendant was an adopted son of a Chinaman named Pe Beco, a collateral relative of Lolita's father. Because
of such fact and the similarity in their family name, defendant became close to the plaintiffs who regarded him
as a member of their family. Sometime in 1952, defendant frequented the house of Lolita on the pretext that he
wanted her to teach him how to pray the rosary. The two eventually fell in love with each other and conducted
clandestine trysts not only in the town of Gasan but also in Boac where Lolita used to teach in a barrio school.
They exchanged love notes with each other the contents of which reveal not only their infatuation for each
other but also the extent to which they had carried their relationship. The rumors about their love affairs
reached the ears of Lolita's parents sometime, in 1955, and since then defendant was forbidden from going to
their house and from further seeing Lolita. The plaintiffs even filed deportation proceedings against defendant
who is a Chinese national. The affair between defendant and Lolita continued nonetheless.
Sometime in April, 1957, Lolita was staying with her brothers and sisters at their residence at 54-B Espaa
Extension, Quezon City. On April 14, 1957, Lolita disappeared from said house. After she left, her brothers and
sisters checked up her thing and found that Lolita's clothes were gone. However, plaintiffs found a note on a
crumpled piece of paper inside Lolita's aparador. Said note, written on a small slip of paper approximately 4"
by 3" in size, was in a handwriting recognized to be that of defendant's. In English it reads:
Honey, suppose I leave here on Sunday night, and that's 13th of this month and we will have a date on
the 14th, that's Monday morning at 10 a.m.
Reply
Love

The disappearance of Lolita was reported to the police authorities and the NBI but up to the present there is no
news or trace of her whereabouts.
The present action is based on Article 21 of the New Civil Code which provides:
Any person who wilfully causes loss or injury to another in a manner which is contrary to morals, good
customs or public policy shall compensate the latter for the damage.
There is no doubt that the claim of plaintiffs for damages is based on the fact that defendant, being a married
man, carried on a love affair with Lolita Pe thereby causing plaintiffs injury in a manner contrary to morals,
good customs and public policy. But in spite of the fact that plaintiffs have clearly established that in illicit affair
was carried on between defendant and Lolita which caused great damage to the name and reputation of
plaintiffs who are her parents, brothers and sisters, the trial court considered their complaint not actionable for
the reason that they failed to prove that defendant deliberately and in bad faith tried to win Lolita's affection
Thus, the trial court said: "In the absence of proof on this point, the court may not presume that it was the
defendant who deliberately induced such relationship. We cannot be unmindful of the uncertainties and
sometimes inexplicable mysteries of the human emotions. It is a possibility that the defendant and Lolita simply
fell in love with each other, not only without any desire on their part, but also against their better judgment and
in full consciousness of what it will bring to both of them. This is specially so with respect to Lolita, being an
unmarried woman, falling in love with defendant who is a married man."
We disagree with this view. The circumstances under which defendant tried to win Lolita's affection cannot
lead, to any other conclusion than that it was he who, thru an ingenious scheme or trickery, seduced the latter
to the extent of making her fall in love with him. This is shown by the fact that defendant frequented the house
of Lolita on the pretext that he wanted her to teach him how to pray the rosary. Because of the frequency of his
visits to the latter's family who was allowed free access because he was a collateral relative and was
considered as a member of her family, the two eventually fell in love with each other and conducted
clandestine love affairs not only in Gasan but also in Boac where Lolita used to teach in a barrio school. When
the rumors about their illicit affairs reached the knowledge of her parents, defendant was forbidden from going
to their house and even from seeing Lolita. Plaintiffs even filed deportation proceedings against defendant who
is a Chinese national. Nevertheless, defendant continued his love affairs with Lolita until she disappeared from
the parental home. Indeed, no other conclusion can be drawn from this chain of events than that defendant not
only deliberately, but through a clever strategy, succeeded in winning the affection and love of Lolita to the
extent of having illicit relations with her. The wrong he has caused her and her family is indeed immeasurable
considering the fact that he is a married man. Verily, he has committed an injury to Lolita's family in a manner
contrary to morals, good customs and public policy as contemplated in Article 21 of the new Civil Code.
WHEREFORE, the decision appealed from is reversed. Defendant is hereby sentenced to pay the plaintiffs the
sum of P5,000.00 as damages and P2,000.00 as attorney's fees and expenses of litigations. Costs against
appellee.
Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes and Dizon, JJ., concur.

Republic of the Philippines

SUPREME COURT
Baguio City
THIRD DIVISION
G.R. No. 142943

April 3, 2002

Spouses ANTONIO and LORNA QUISUMBING, petitioners,

vs.
MANILA ELECTRIC COMPANY (MERALCO), respondent.
PANGANIBAN, J.:
Under the law, the Manila Electric Company (Meralco) may immediately disconnect electric service on the
ground of alleged meter tampering, but only if the discovery of the cause is personally witnessed and attested
to by an officer of the law or by a duly authorized representative of the Energy Regulatory Board.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the February 1, 2000
Decision1and the April 10, 2000 Resolution2 of the Court of Appeals (CA) in CA-GR SP No. 49022. The
decretal portion of the said Decision reads as follows:
"WHEREFORE, the challenged decision in Civil Case No. Q-95-23219 is hereby SET ASIDE and the
complaint against defendant-appellant MERALCO is hereby DISMISSED. Plaintiffs-appellees are
herebyORDERED to pay defendant-appellant MERALCO the differential billing of P193,332.00
representing the value of used but unregistered electrical consumption."3
The assailed Resolution denied petitioner's Motion for Reconsideration.
The Facts
The facts of the case are summarized by the Court of Appeals in this wise:
"Defendant-appellant Manila Electric Company (MERALCO) is a private corporation, authorized by law
to charge all persons, including the government, for the consumption of electric power at rates duly
authorized and approved by the Board of Energy (now the Energy Regulatory Board).

"Plaintiffs-appellees Spouses Antonio and Lorna Quisumbing are owners of a house and lot located at
No. 94 Greenmeadows Avenue, Quezon City, which they bought on April 7, 1994 from Ms. Carmina
Serapio Santos. They alleged to be business entrepreneurs engaged in the export of furnitures under
the business name 'Loran Industries' and recipient of the 1993 Agora Award and 1994 Golden Shell
Award. Mrs. Quisumbing is a member of the Innerwheel Club while Mr. Quisumbing is a member of the
Rotary Club, Chairman of Cebu Chamber of Commerce, and Director of Chamber of Furniture.
"On March 3, 1995 at around 9:00 a.m., defendant-appellant's inspectors headed by Emmanuel C.
Orlino were assigned to conduct a routine-on-the-spot inspection of all single phase meters at
Greenmeadows Avenue. House no. 94 of Block 8, Lot 19 Greenmeadows Avenue owned by plaintiffsappellees was inspected after observing a standard operating procedure of asking permission from
plaintiffs-appellees, through their secretary which was granted. The secretary witnessed the inspection.
After the inspection, defendant-appellant's inspectors discovered that the terminal seal of the meter
was missing; the meter cover seal was deformed; the meter dials of the meter was mis-aligned and
there were scratches on the meter base plate. Defendant-appellant's inspectors relayed the matter to
plaintiffs-appellees' secretary, who in turn relayed the same to plaintiff-appellee, Lorna Quisumbing,
who was outraged of the result of the inspection and denied liability as to the tampering of the meter.
Plaintiffs-appellees were advised by defendant-appellant's inspectors that they had to detach the meter
and bring it to their laboratory for verification/confirmation of their findings. In the event the meter turned
out to be tampered, defendant-appellant had to temporarily disconnect the electric services of plaintiffsappellees. The laboratory testing conducted on the meter has the following findings to wit:
'1. Terminal seal was missing.
'2. Lead cover seals ('90 ERB 1-Meralco 21) were tampered by forcibly pulling out from the
sealing wire.
'3. The 1000th, 100th and 10th dial pointers of the register were found out of alignment and with
circular scratches at the face of the register which indicates that the meter had been opened to
manipulate the said dial pointers and set manually to the desired reading. In addition to this, the
meter terminal blades were found full of scratches.'
"After an hour, defendant-appellant's head inspector, E. Orlina returned to the residence of plaintiffsappellees and informed them that the meter had been tampered and unless they pay the amount
ofP178,875.01 representing the differential billing, their electric supply would be disconnected. Orlina
informed plaintiffs-appellees that they were just following their standard operating procedure. Plaintiffsappellees were further advised that questions relative to the results of the inspection as well as the
disconnection of her electrical services for Violation of Contract (VOC) may be settled with Mr. M.
Manuson of the Special Accounts, Legal Service Department. However, on the same day at around
2:00 o'clock in the afternoon defendant-appellant's officer through a two-way radio instructed its service
inspector headed by Mr. Orlino to reconnect plaintiffs-appellees' electric service which the latter
faithfully complied.
"On March 6, 1995, plaintiffs-appellees filed a complaint for damages with prayer for the issuance of a
writ of preliminary mandatory injunction, despite the immediate reconnection, to order defendantappellant to furnish electricity to the plaintiffs-appellees alleging that defendant-appellant acted with
wanton, capricious, malicious and malevolent manner in disconnecting their power supply which was
done without due process, and without due regard for their rights, feelings, peace of mind, social and
business reputation.
"In its Answer, defendant-appellant admitted disconnecting the electric service at the plaintiffsappellees' house but denied liability citing the 'Terms and Conditions of Service,' and Republic Act No.

7832 otherwise known a 'Anti-Electricity and Electric Transmission Lines/Materials Pilferage Act of
1994.'
"After trial on the merits, the lower court rendered judgment, ruling in favor of plaintiffsappellees."4(Citations omitted)
Ruling of the Trial Court
The trial court held that Meralco (herein respondent) should have given the Quisumbing spouses (herein
petitioners) ample opportunity to dispute the alleged meter tampering.
It held that respondent had acted summarily and without procedural due process in immediately disconnecting
the electric service of petitioners. Respondent's action, ruled the RTC, constituted a quasi delict.
Ruling of the Court of Appeals
The Court of Appeals overturned the trial court's ruling and dismissed the Complaint. It held that respondent's
representatives had acted in good faith when they disconnected petitioners' electric service. Citing testimonial
and documentary evidence, it ruled that the disconnection was made only after observing due process.
Further, it noted that petitioners had not been able to prove their claim for damages. The appellate court
likewise upheld respondent's counterclaim for the billing differential in the amount of P193,3325 representing
the value of petitioners' used but unregistered electrical consumption, which had been established without
being controverted.
Hence, this Petition.6
The Issues
In their Memorandum,7 petitioners submit the following issues for our consideration:
"4.1 Whether a prima facie presumption of tampering of electrical meter enumerated under Sec. 4 (a) iv
of RA 7832 (Anti-Electricity and Electric Transmission Lines/Materials Pilferage Act of 1994) may be
had despite the absence of an ERB representative or an officer of the law?
"4.2 Whether the enumeration of instances to establish a prima facie presumption of tampering of
electrical meter enumerated under Sec. 4 (a) iv of RA 7832 (Anti-Electricity and Electric Transmission
Lines/Materials Pilferage Act of 1994) is exclusive?
"4.3 What constitutes notice prior to disconnection of electricity service? Corollarily, whether the
definition of notice under Meralco v. Court of Appeals (157 SCRA 243) applies to the case at bar?
"4.4 Whether a prima facie presumption may contradict logic?
"4.5 Whether documentary proof is pre-requisite for award of damages?"8
In sum, this Petition raises three (3) main issues which this Court will address: (1) whether respondent
observed the requisites of law when it disconnected the electrical supply of petitioners, (2) whether such
disconnection entitled petitioners to damages, and (3) whether petitioners are liable for the billing differential
computed by respondent.
The Court's Ruling

The Petition is partly meritorious.

First Issue:
Compliance with Requisites of Law
Petitioners contend that the immediate disconnection of electrical service was not validly effected because of
respondent's noncompliance with the relevant provisions of RA 7832, the "Anti-Electricity and Electric
Transmission Lines/Materials Pilferage Act of 1994." They insist that the immediate disconnection of electrical
supply may only be validly effected only when there is prima facie evidence of its illegal use. To constitute
prima facie evidence, the discovery of the illegal use must be "personally witnessed and attested to by an
officer of the law or a duly authorized representative of the Energy Regulatory Board (ERB)."
Respondent, on the other hand, points out that the issue raised by petitioners is a question of fact which this
Court cannot pass upon. It argues further that this issue, which was not raised in the court below, can no
longer be taken up for the first time on appeal. Assuming arguendo that the issue was raised below, it also
contends that petitioners were not able to specifically prove the absence of an officer of the law or a duly
authorized representative of the ERB when the discovery was made.1wphi1.nt
Prima facie Evidence of Illegal Use of Electricity
We agree with petitioners. Section 4 of RA 7832 states:
(a) The presence of any of the following circumstances shall constitute prima facie evidence of illegal
use of electricity, as defined in this Act, by the person benefitted thereby, and shall be the basis for: (1)
the immediate disconnection by the electric utility to such person after due notice, x x x
xxx

xxx

xxx

(viii) x x x Provided, however, That the discovery of any of the foregoing circumstances, in order to
constitute prima facie evidence, must be personally witnessed and attested to by an officer of the law
or a duly authorized representative of the Energy Regulatory Board (ERB)."9 (Italics supplied)
Under the above provision, the prima facie presumption that will authorize immediate disconnection will arise
only upon the satisfaction of certain requisites. One of these requisites is the personal witnessing and
attestation by an officer of the law or by an authorized ERB representative when the discovery was made.
As a rule, this Court reviews only questions of law, not of facts. However, it may pass upon the evidence when
the factual findings of the trial court are different from those of the Court of Appeals, as in this case.10
A careful review of the evidence on record negates the appellate court's holding that "the actions of defendantappellant's service inspectors were all in accord with the requirement of the law."11
Respondent's own witnesses provided the evidence on who were actually present when the inspection was
made. Emmanuel C. Orlino, the head of the Meralco team, testified:
"Q
When you were conducting this inspection, and you discovered these findings you testified
earlier, who was present?
A

The secretary, sir."12

"ATTY. REYES - Who else were the members of your team that conducted this inspection at
Greenmeadows Avenue on that day, March 3, 1995?
A

The composition of the team, sir?

Yes.

Including me, we are about four (4) inspectors, sir.

You were four (4)?

Yes, sir.

Who is the head of this team?

I was the head of the team, sir."13

Further, Catalino A. Macaraig, the area head of the Orlino team, stated that only Meralco personnel had been
present during the inspection:
"Q

By the way you were not there at Green Meadows on that day, right?

Yes, sir.

Only Mr. Orlino and who else were there?

Two or three of his men.

All members of the inspection team?

Yes, sir."14

These testimonies clearly show that at the time the alleged meter tampering was discovered, only the Meralco
inspection team and petitioners' secretary were present. Plainly, there was no officer of the law or ERB
representative at that time. Because of the absence of government representatives, the prima facie authority to
disconnect, granted to Meralco by RA 7832, cannot apply.
Neither can respondent find solace in the fact that petitioners' secretary was present at the time the inspection
was made. The law clearly states that for the prima facie evidence to apply, the discovery "must be personally
witnessed and attested to by an officer of the law or a duly authorized representative of the Energy Regulatory
Board (ERB)."15 Had the law intended the presence of the owner or his/her representative to suffice, then it
should have said so. Embedded in our jurisprudence is the rule that courts may not construe a statute that is
free from doubt.16 Where the law is clear and unambiguous, it must be taken to mean exactly what it says, and
courts have no choice but to see to it that the mandate is obeyed.17
In fact, during the Senate deliberations on RA 7832, Senator John H. Osmea, its author, stressed the need for
the presence of government officers during inspections of electric meters. He said:
"Mr. President, if a utility like MERALCO finds certain circumstances or situations which are listed in
Section 2 of this bill to be prima facie evidence, I think they should be prudent enough to bring in
competent authority, either the police or the NBI, to verify or substantiate their finding. If they were to
summarily proceed to disconnect on the basis of their findings and later on there would be a court case

and the customer or the user would deny the existence of what is listed in Section 2, then they could be
in a lot of trouble."18 (Italics supplied)
Neither can we accept respondent's argument that when the alleged tampered meter was brought to Meralco's
laboratory for testing, there was already an ERB representative present.
The law says that before immediate disconnection may be allowed, the discovery of the illegal use of electricity
must have been personally witnessed and attested to by an officer of the law or by an authorized ERB
representative. In this case, the disconnection was effected immediately after the discovery of the alleged
meter tampering, which was witnessed only by Meralco's employees. That the ERB representative was
allegedly present when the meter was examined in the Meralco laboratory will not cure the defect.
It is undisputed that after members of the Meralco team conducted their inspection and found alleged meter
tampering, they immediately disconnected petitioners' electrical supply. Again, this verity is culled from the
testimony of Meralco's Orlina:
"A
When she went inside then she came out together with Mrs. Lourdes Quis[u]mbing at that time.
We did tell our findings regarding the meter and the consequence with it. And she was very angry with
me.
Q

When you say consequence of your findings, what exactly did you tell Mrs. Quisumbing?

A
We told her that the service will be temporarily disconnected and that we are referring to our
Legal Department so could know the violation, sir."19
"A

Yes, sir. At that time, I referred her to Mr. Macaraig, sir.

What is the fist name of this supervisor?

Mr. Catalino Macara[i]g, sir.

Then after talking to Mr. Catalino Macara[i]g, this is over the telephone, what happened?

A
The supervisor advised her that the service will be temporarily disconnected and she has to go to
our Legal Department where she could settle the VOC, sir.
Q

You are talking of 'VOC,' what is this all about Mr. Orlino?

'VOC' is violation of contract, sir."20

As to respondent's argument that the presence of an authorized ERB representative had not been raised
below, it is clear, however, that the issue of due process was brought up by petitioners as a valid issue in the
CA. The presence of government agents who may authorize immediate disconnections go into the essence of
due process. Indeed, we cannot allow respondent to act virtually as prosecutor and judge in imposing the
penalty of disconnection due to alleged meter tampering. That would not sit well in a democratic country. After
all, Meralco is a monopoly that derives its power from the government. Clothing it with unilateral authority to
disconnect would be equivalent to giving it a license to tyrannize its hapless customers.
Besides, even if not specifically raised, this Court has already ruled that "[w]here the issues already raised also
rest on other issues not specifically presented, as long as the latter issues bear relevance and close relation to
the former and as long as they arise from matters on record, the Court has the authority to include them in its
discussion of the controversy as well as to pass upon them."21

Contractual Right to Disconnect

Electrical Service
Neither may respondent rely on its alleged contractual right to disconnect electrical service based on Exhibits
"10"22 and "11,"23 or on Decisions of the Board of Energy (now the Energy Regulatory Board). The relevant
portion of these documents concerns discontinuance of service. It provides:
"The Company reserves the right to discontinue service in case the Customer is in arrears in the
payment of bills or for failure to pay the adjusted bills in those cases where the meter stopped or failed
to register the correct amount of energy consumed, or for failure to comply with any of these terms and
conditions, or in case of or to prevent fraud upon the Company. Before disconnection is made in case
of or to prevent fraud, the Company may adjust the bill of said Customer accordingly and if the adjusted
bill is not paid, the Company may disconnect the same. In case of disconnection, the provisions of
Revised Order No. 1 of the former Public Service Commission (now the Board of Energy) shall be
observed. Any such suspension of service shall not terminate the contract between the Company and
the Customer."24
Petitioners' situation can fall under disconnection only "in case of or to prevent fraud upon the Company."
However, this too has requisites before a disconnection may be made. An adjusted bill shall be prepared, and
only upon failure to pay it may the company discontinue service. This is also true in regard to the provisions of
Revised Order No. 1 of the former Public Service Commission, which requires a 48-hour written notice before
a disconnection may be justified. In the instant case, these requisites were obviously not complied with.
Second Issue
Damages
Having ruled that the immediate disconnection effected by Meralco lacks legal, factual or contractual basis, we
will now pass upon on the right of petitioners to recover damages for the improper disconnection.
Petitioners are asking for the reinstatement of the RTC Decision, which awarded them actual, moral and
exemplary damages as well as attorney's fees. All these were overturned by the CA.
As to actual damages, we agree with the CA that competent proof is necessary before our award may be
made. The appellate court ruled as follows:
"Considering further, it is a settled rule that in order for damages to be recovered, the best evidence
obtainable by the injured party must be presented. Actual and compensatory damages cannot be
presumed but must be duly proved and proved with reasonable degree and certainty. A court cannot
rely on speculation, conjecture or guess work as to the fact and amount of damages, but must depend
upon competent proof that they have been suffered and on evidence of actual amount thereof. If the
proof is flimsy and unsubstantial, no damages will be awarded."25
Actual damages are compensation for an injury that will put the injured party in the position where it was before
it was injured.26 They pertain to such injuries or losses that are actually sustained and susceptible of
measurement.27 Except as provided by law or by stipulation, a party is entitled to an adequate compensation
only for such pecuniary loss as it has duly proven.28
Basic is the rule that to recover actual damages, not only must the amount of loss be capable of proof; it must
also be actually proven with a reasonable degree of certainty, premised upon competent proof or the best
evidence obtainable.29

Petitioners' claim for actual damages was premised only upon Lorna Quisumbing's bare testimony as follows:
"A
Actually that da[y] I was really scheduled to go to that furniture exhibit. That furniture exhibit is
only once a year.
Q

What is this furniture exhibit?

A
The SITEM, that is a government agency that takes care of exporters and exclusive marketing of
our products around the world. We always have that once a year and that's the time when all our
buyers are here for us to show what we had that was exhibited to go around. So, my husband had to
[fly] from Cebu to Manila just for this occasion. So we have an appointment with our people and our
buyers with SITEM and also that evening we will have to treat them [to] dinner.
Q

Whereat?

At our residence, we were supposed to have a dinner at our residence.

What happened to this occasion?

A
So when they disconnected our electric power we had to get in touch with them and change the
venue.
Q

Which venue did you transfer your dinner for your buyers?

A
We brought them in a restaurant in Makati at Season's Restaurant. But it was very embar[r]assing
for us because we faxed them ahead of time before they came to Manila.
Q
Now as a result of this change of your schedule because of the disconnection of the electric
power on that day, Friday, what damage did you suffer?
A

I cancelled the catering service and that is so much of a h[a]ssle it was so embarras[s]ing for us.

Can you tell us how much amount?

Approximately P50,000.00."30

No other evidence has been proffered to substantiate her bare statements. She has not shown how she
arrived at the amount of P50,000; it is, at best, speculative. Her self-serving testimonial evidence, if it may be
called such, is insufficient to support alleged actual damages.
While respondent does not rebut this testimony on the expenses incurred by the spouses in moving the dinner
out of their residence due to the disconnection, no receipts covering such expenditures have been adduced in
evidence. Neither is the testimony corroborated. To reiterate, actual or compensatory damages cannot be
presumed, but must be duly proved with a reasonable degree of certainty. It is dependent upon competent
proof of damages that petitioners have suffered and of the actual amount thereof.31 The award must be based
on the evidence presented, not on the personal knowledge of the court; and certainly not on flimsy, remote,
speculative and unsubstantial proof.32 Consequently, we uphold the CA ruling denying the grant of actual
damages.
Having said that, we agree with the trial court, however, that petitioners are entitled to moral damages, albeit in
a reduced amount.

The RTC opined as follows:

"This Court agrees with the defendant regarding [its] right by law and equity to protect itself from any
fraud. However, such right should not be exercised arbitrarily but with great caution and with due regard
to the rights of the consumers. Meralco having a virtual monopoly of the supply of electric power should
refrain from taking drastic actions against the consumers without observing due process. Even
assuming that the subject meter has had history of meter tampering, defendant cannot simply assume
that the present occupants are the ones responsible for such tampering. Neither does it serve as a
license to deprive the plaintiffs of their right to due process. Defendant should have given the plaintiffs
simple opportunity to dispute the electric charges brought about by the alleged meter-tampering, which
were not included in the bill rendered them. Procedural due process requires reasonable notice to pay
the bill and reasonable notice to discontinue supply. Absent due process the defendant may be held
liable for damages. While this Court is aware of the practice of unscrupulous individuals of stealing
electric curre[n]t which causes thousands if not millions of pesos in lost revenue to electric companies,
this does not give the defendant the right to trample upon the rights of the consumers by denying them
due process."33
Article 2219 of the Civil Code lists the instances when moral damages may be recovered. One such case34 is
when the rights of individuals, including the right against deprivation of property without due process of law, are
violated.35
Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and similar injury.36 Although incapable of pecuniary
computation, such damages may be recovered if they are the proximate results of the defendant's wrongful act
or omission.37
Case law establishes the following requisites for the award of moral damages: (1) there is an injury -- whether
physical, mental or psychological -- clearly sustained by the claimant; (2) there is a culpable act or omission
factually established; (3) the wrongful act or omission of the defendant is the proximate cause of the injury
sustained by the claimant; and (4) the award of damages is predicated on any of the cases stated in Article
2219 of the Civil Code.38
To reiterate, respondent had no legal right to immediately disconnect petitioners' electrical supply without
observing the requisites of law which, in turn, are akin to due process. Had respondent been more circumspect
and prudent, petitioners could have been given the opportunity to controvert the initial finding of alleged meter
tampering. Said the RTC:
"More seriously, the action of the defendant in maliciously disconnecting the electric service constitutes
a breach of public policy. For public utilities, broad as their powers are, have a clear duty to see to it
that they do not violate nor transgress the rights of the consumers. Any act on their part that militates
against the ordinary norms of justice and fair play is considered an infraction that gives rise to an action
for damages. Such is the case at bar."39
Indeed, the Supreme Court has ruled in Meralco v. CA40 that respondent is required to give notice of
disconnection to an alleged delinquent customer. The Court said:
"x x x One can not deny the vital role which a public utility such as MERALCO, having a monopoly of
the supply of electrical power in Metro Manila and some nearby municipalities, plays in the life of
people living in such areas. Electricity has become a necessity to most people in these areas, justifying
the exercise by the State of its regulatory power over the business of supplying electrical service to the
public, in which petitioner MERALCO is engaged. Thus, the state may regulate, as it has done through
Section 97 of the Revised Order No. 1 of the Public Service Commission, the conditions under which

and the manner by which a public utility such as MERALCO may effect a disconnection of service to a
delinquent customer. Among others, a prior written notice to the customer is required before
disconnection of the service. Failure to give such prior notice amounts to a tort."41
Observance of the rights of our people is sacred in our society. We cannot allow such rights to be trifled with or
trivialized. Although the Court sympathizes with respondent's efforts to stamp out the illegal use of electricity,
such action must be done only with strict observance of the rights of our people. As has been we succinctly
said: "there is a right way to do the right thing at the right time for the right reason."42
However, the amount of moral damages, which is left largely to the sound discretion of the courts, should be
granted in reasonable amounts, considering the attendant facts and circumstances.43 Moral damages, though
incapable of pecuniary estimation, are designed to compensate the claimant for actual injury suffered and not
to impose a penalty.44 Moral damages are not intended to enrich a plaintiff at the expense of the
defendant.45 They are awarded only to obtain a means, a diversion or an amusement that will serve to alleviate
the moral suffering the injured party has undergone by reason of the defendant's culpable action.46 They must
be proportionate to the suffering inflicted.47
It is clear from the records that respondent was able to restore the electrical supply of petitioners on the same
day. Verily, the inconvenience and anxiety they suffered as a result of the disconnection was thereafter
corrected. Thus, we reduce the RTC's grant of moral damages to the more equitable amount of P100,000.
Exemplary damages, on the other hand, are imposed by way of example or correction for the public good in
addition to moral, temperate, liquidated or compensatory damages.48 It is not given to enrich one party and
impoverish another, but to serve as a deterrent against or as a negative incentive to socially deleterious
actions.49 In this case, to serve an example -- that before a disconnection of electrical supply can be effected
by a public utility like Meralco, the requisites of law must be faithfully complied with -- we award the amount
of P50,000 to petitioners.
Finally, with the award of exemplary damages, the award of attorney's fees is likewise granted. 50 It is readily
apparent that petitioners needed the services of a lawyer to argue their cause, even to the extent of elevating
the matter to this Court;51 thus, an award of P50,000 is considered sufficient.
Final Issue:
Billing Differential
Finally, this Court holds that despite the basis for the award of damages -- the lack of due process in
immediately disconnecting petitioners' electrical supply -- respondent's counterclaim for the billing differential is
still proper. We agree with the CA that respondent should be given what it rightfully deserves. The evidence it
presented, both documentary and testimonial, sufficiently proved the amount of the differential.
Not only did respondent show how the meter examination had been conducted by its experts, but it also
established the amount of P193,332.96 that petitioners owed respondent. The procedure through which this
amount was arrived at was testified to by Meralco's Senior Billing Computer Enrique Katipunan. His testimony
was corroborated by documentary evidence showing the account's billing history and the corresponding
computations. Neither do we doubt the documents of inspections and examinations presented by respondent
to prove that, indeed there had been meter tampering that resulted in unrecorded and unpaid electrical
consumption.
The mere presentation by petitioners of a Contract to Sell with Assumption of Mortgage 52 does not necessarily
mean that they are no longer liable for the billing differential. There was no sufficient evidence to show that
they had not been actually residing in the house before the date of the said document. Lorna Quisumbing

herself admitted53 that they did not have any contract for electrical service in their own name. Hence,
petitioners effectively assumed the bills of the former occupants of the premises.
Finally, the CA was correct in ruling that the convincing documentary and testimonial evidence presented by
respondent, was not controverted by petitioners.1wphi1.nt
WHEREFORE, the Petition is hereby PARTLY GRANTED. The assailed CA Decision is MODIFIED as follows:
petitioners are ORDERED to pay respondent the billing differential of P193,332.96; while respondent is
ordered to pay petitioners P100,000 as moral damages, P50,000 as exemplary damages, and P50,000 as
attorney's fees. No pronouncement as to costs.
SO ORDERED.
Melo, Sandoval-Gutierrez, and Carpio, JJ., concur.
Vitug, J., abroad on official business.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 81262 August 25, 1989
GLOBE MACKAY CABLE AND RADIO CORP., and HERBERT C. HENDRY, petitioners,
vs.
THE HONORABLE COURT OF APPEALS and RESTITUTO M. TOBIAS, respondents.
Atencia & Arias Law Offices for petitioners.
Romulo C. Felizmena for private respondent.

CORTES, J.:
Private respondent Restituto M. Tobias was employed by petitioner Globe Mackay Cable and Radio
Corporation (GLOBE MACKAY) in a dual capacity as a purchasing agent and administrative assistant to the
engineering operations manager. In 1972, GLOBE MACKAY discovered fictitious purchases and other
fraudulent transactions for which it lost several thousands of pesos.

According to private respondent it was he who actually discovered the anomalies and reported them on
November 10, 1972 to his immediate superior Eduardo T. Ferraren and to petitioner Herbert C. Hendry who
was then the Executive Vice-President and General Manager of GLOBE MACKAY.
On November 11, 1972, one day after private respondent Tobias made the report, petitioner Hendry confronted
him by stating that he was the number one suspect, and ordered him to take a one week forced leave, not to
communicate with the office, to leave his table drawers open, and to leave the office keys.
On November 20, 1972, when private respondent Tobias returned to work after the forced leave, petitioner
Hendry went up to him and called him a "crook" and a "swindler." Tobias was then ordered to take a lie
detector test. He was also instructed to submit specimen of his handwriting, signature, and initials for
examination by the police investigators to determine his complicity in the anomalies.
On December 6,1972, the Manila police investigators submitted a laboratory crime report (Exh. "A") clearing
private respondent of participation in the anomalies.
Not satisfied with the police report, petitioners hired a private investigator, retired Col. Jose G. Fernandez, who
on December 10, 1972, submitted a report (Exh. "2") finding Tobias guilty. This report however expressly stated
that further investigation was still to be conducted.
Nevertheless, on December 12, 1972, petitioner Hendry issued a memorandum suspending Tobias from work
preparatory to the filing of criminal charges against him.
On December 19,1972, Lt. Dioscoro V. Tagle, Metro Manila Police Chief Document Examiner, after
investigating other documents pertaining to the alleged anomalous transactions, submitted a second laboratory
crime report (Exh. "B") reiterating his previous finding that the handwritings, signatures, and initials appearing
in the checks and other documents involved in the fraudulent transactions were not those of Tobias. The lie
detector tests conducted on Tobias also yielded negative results.
Notwithstanding the two police reports exculpating Tobias from the anomalies and the fact that the report of the
private investigator, was, by its own terms, not yet complete, petitioners filed with the City Fiscal of Manila a
complaint for estafa through falsification of commercial documents, later amended to just estafa. Subsequently
five other criminal complaints were filed against Tobias, four of which were for estafa through Falsification of
commercial document while the fifth was for of Article 290 of' the Revised Penal Code (Discovering Secrets
Through Seizure of Correspondence).lwph1.t Two of these complaints were refiled with the Judge
Advocate General's Office, which however, remanded them to the fiscal's office. All of the six criminal
complaints were dismissed by the fiscal. Petitioners appealed four of the fiscal's resolutions dismissing the
criminal complaints with the Secretary of Justice, who, however, affirmed their dismissal.
In the meantime, on January 17, 1973, Tobias received a notice (Exh. "F") from petitioners that his employment
has been terminated effective December 13, 1972. Whereupon, Tobias filed a complaint for illegal dismissal.
The labor arbiter dismissed the complaint. On appeal, the National Labor Relations Commission (NLRC)
reversed the labor arbiter's decision. However, the Secretary of Labor, acting on petitioners' appeal from the
NLRC ruling, reinstated the labor arbiter's decision. Tobias appealed the Secretary of Labor's order with the
Office of the President. During the pendency of the appeal with said office, petitioners and private respondent
Tobias entered into a compromise agreement regarding the latter's complaint for illegal dismissal.
Unemployed, Tobias sought employment with the Republic Telephone Company (RETELCO). However,
petitioner Hendry, without being asked by RETELCO, wrote a letter to the latter stating that Tobias was
dismissed by GLOBE MACKAY due to dishonesty.

Private respondent Tobias filed a civil case for damages anchored on alleged unlawful, malicious, oppressive,
and abusive acts of petitioners. Petitioner Hendry, claiming illness, did not testify during the hearings. The
Regional Trial Court (RTC) of Manila, Branch IX, through Judge Manuel T. Reyes rendered judgment in favor
of private respondent by ordering petitioners to pay him eighty thousand pesos (P80,000.00) as actual
damages, two hundred thousand pesos (P200,000.00) as moral damages, twenty thousand pesos
(P20,000.00) as exemplary damages, thirty thousand pesos (P30,000.00) as attorney's fees, and costs.
Petitioners appealed the RTC decision to the Court of Appeals. On the other hand, Tobias appealed as to the
amount of damages. However, the Court of Appeals, an a decision dated August 31, 1987 affirmed the RTC
decision in toto. Petitioners' motion for reconsideration having been denied, the instant petition for review
on certiorari was filed.
The main issue in this case is whether or not petitioners are liable for damages to private respondent.
Petitioners contend that they could not be made liable for damages in the lawful exercise of their right to
dismiss private respondent.
On the other hand, private respondent contends that because of petitioners' abusive manner in dismissing him
as well as for the inhuman treatment he got from them, the Petitioners must indemnify him for the damage that
he had suffered.
One of the more notable innovations of the New Civil Code is the codification of "some basic principles that are
to be observed for the rightful relationship between human beings and for the stability of the social order."
[REPORT ON THE CODE COMMISSION ON THE PROPOSED CIVIL CODE OF THE PHILIPPINES, p. 39].
The framers of the Code, seeking to remedy the defect of the old Code which merely stated the effects of the
law, but failed to draw out its spirit, incorporated certain fundamental precepts which were "designed to indicate
certain norms that spring from the fountain of good conscience" and which were also meant to serve as
"guides for human conduct [that] should run as golden threads through society, to the end that law may
approach its supreme ideal, which is the sway and dominance of justice" (Id.) Foremost among these
principles is that pronounced in Article 19 which provides:
Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act
with justice, give everyone his due, and observe honesty and good faith.
This article, known to contain what is commonly referred to as the principle of abuse of rights, sets certain
standards which must be observed not only in the exercise of one's rights but also in the performance of one's
duties. These standards are the following: to act with justice; to give everyone his due; and to observe honesty
and good faith. The law, therefore, recognizes a primordial limitation on all rights; that in their exercise, the
norms of human conduct set forth in Article 19 must be observed. A right, though by itself legal because
recognized or granted by law as such, may nevertheless become the source of some illegality. When a right is
exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to
another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. But while
Article 19 lays down a rule of conduct for the government of human relations and for the maintenance of social
order, it does not provide a remedy for its violation. Generally, an action for damages under either Article 20 or
Article 21 would be proper.
Article 20, which pertains to damage arising from a violation of law, provides that:
Art. 20. Every person who contrary to law, wilfully or negligently causes damage to another,
shall indemnify the latter for the same.

However, in the case at bar, petitioners claim that they did not violate any provision of law since they were
merely exercising their legal right to dismiss private respondent. This does not, however, leave private
respondent with no relief because Article 21 of the Civil Code provides that:
Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall compensate the latter for the damage.
This article, adopted to remedy the "countless gaps in the statutes, which leave so many victims of moral
wrongs helpless, even though they have actually suffered material and moral injury" [Id.] should "vouchsafe
adequate legal remedy for that untold number of moral wrongs which it is impossible for human foresight to
provide for specifically in the statutes" [Id. it p. 40; See also PNB v. CA, G.R. No. L-27155, May 18,1978, 83
SCRA 237, 247].
In determining whether or not the principle of abuse of rights may be invoked, there is no rigid test which can
be applied. While the Court has not hesitated to apply Article 19 whether the legal and factual circumstances
called for its application [See for e.g., Velayo v. Shell Co. of the Phil., Ltd., 100 Phil. 186 (1956); PNB v.
CA, supra; Grand Union Supermarket, Inc. v. Espino, Jr., G.R. No. L-48250, December 28, 1979, 94 SCRA
953; PAL v. CA, G.R. No. L-46558, July 31,1981,106 SCRA 391; United General Industries, Inc, v. Paler G.R.
No. L-30205, March 15,1982,112 SCRA 404; Rubio v. CA, G.R. No. 50911, August 21, 1987, 153 SCRA 183]
the question of whether or not the principle of abuse of rights has been violated resulting in damages under
Article 20 or Article 21 or other applicable provision of law, depends on the circumstances of each case. And in
the instant case, the Court, after examining the record and considering certain significant circumstances, finds
that all petitioners have indeed abused the right that they invoke, causing damage to private respondent and
for which the latter must now be indemnified.
The trial court made a finding that notwithstanding the fact that it was private respondent Tobias who reported
the possible existence of anomalous transactions, petitioner Hendry "showed belligerence and told plaintiff
(private respondent herein) that he was the number one suspect and to take a one week vacation leave, not to
communicate with the office, to leave his table drawers open, and to leave his keys to said defendant
(petitioner Hendry)" [RTC Decision, p. 2; Rollo, p. 232]. This, petitioners do not dispute. But regardless of
whether or not it was private respondent Tobias who reported the anomalies to petitioners, the latter's reaction
towards the former upon uncovering the anomalies was less than civil. An employer who harbors suspicions
that an employee has committed dishonesty might be justified in taking the appropriate action such as ordering
an investigation and directing the employee to go on a leave. Firmness and the resolve to uncover the truth
would also be expected from such employer. But the high-handed treatment accorded Tobias by petitioners
was certainly uncalled for. And this reprehensible attitude of petitioners was to continue when private
respondent returned to work on November 20, 1972 after his one week forced leave. Upon reporting for work,
Tobias was confronted by Hendry who said. "Tobby, you are the crook and swindler in this company."
Considering that the first report made by the police investigators was submitted only on December 10, 1972
[See Exh. A] the statement made by petitioner Hendry was baseless. The imputation of guilt without basis and
the pattern of harassment during the investigations of Tobias transgress the standards of human conduct set
forth in Article 19 of the Civil Code. The Court has already ruled that the right of the employer to dismiss an
employee should not be confused with the manner in which the right is exercised and the effects flowing
therefrom. If the dismissal is done abusively, then the employer is liable for damages to the employee [Quisaba
v. Sta. Ines-Melale Veneer and Plywood Inc., G.R. No. L-38088, August 30, 1974, 58 SCRA 771; See
also Philippine Refining Co., Inc. v. Garcia, G.R. No. L-21871, September 27,1966, 18 SCRA 107] Under the
circumstances of the instant case, the petitioners clearly failed to exercise in a legitimate manner their right to
dismiss Tobias, giving the latter the right to recover damages under Article 19 in relation to Article 21 of the
Civil Code.
But petitioners were not content with just dismissing Tobias. Several other tortious acts were committed by
petitioners against Tobias after the latter's termination from work. Towards the latter part of January, 1973, after

the filing of the first of six criminal complaints against Tobias, the latter talked to Hendry to protest the actions
taken against him. In response, Hendry cut short Tobias' protestations by telling him to just confess or else the
company would file a hundred more cases against him until he landed in jail. Hendry added that, "You Filipinos
cannot be trusted." The threat unmasked petitioner's bad faith in the various actions taken against Tobias. On
the other hand, the scornful remark about Filipinos as well as Hendry's earlier statements about Tobias being a
"crook" and "swindler" are clear violations of 'Tobias' personal dignity [See Article 26, Civil Code].
The next tortious act committed by petitioners was the writing of a letter to RETELCO sometime in October
1974, stating that Tobias had been dismissed by GLOBE MACKAY due to dishonesty. Because of the letter,
Tobias failed to gain employment with RETELCO and as a result of which, Tobias remained unemployed for a
longer period of time. For this further damage suffered by Tobias, petitioners must likewise be held liable for
damages consistent with Article 2176 of the Civil Code. Petitioners, however, contend that they have a "moral,
if not legal, duty to forewarn other employers of the kind of employee the plaintiff (private respondent herein)
was." [Petition, p. 14; Rollo, p. 15]. Petitioners further claim that "it is the accepted moral and societal obligation
of every man to advise or warn his fellowmen of any threat or danger to the latter's life, honor or property. And
this includes warning one's brethren of the possible dangers involved in dealing with, or accepting into
confidence, a man whose honesty and integrity is suspect" [Id.]. These arguments, rather than justify
petitioners' act, reveal a seeming obsession to prevent Tobias from getting a job, even after almost two years
from the time Tobias was dismissed.
Finally, there is the matter of the filing by petitioners of six criminal complaints against Tobias. Petitioners
contend that there is no case against them for malicious prosecution and that they cannot be "penalized for
exercising their right and prerogative of seeking justice by filing criminal complaints against an employee who
was their principal suspect in the commission of forgeries and in the perpetration of anomalous transactions
which defrauded them of substantial sums of money" [Petition, p. 10, Rollo, p. 11].
While sound principles of justice and public policy dictate that persons shall have free resort to the courts for
redress of wrongs and vindication of their rights [Buenaventura v. Sto. Domingo, 103 Phil. 239 (1958)], the right
to institute criminal prosecutions can not be exercised maliciously and in bad faith [Ventura v. Bernabe, G.R.
No. L-26760, April 30, 1971, 38 SCRA 5871.] Hence, in Yutuk V. Manila Electric Co., G.R. No. L-13016, May
31, 1961, 2 SCRA 337, the Court held that the right to file criminal complaints should not be used as a weapon
to force an alleged debtor to pay an indebtedness. To do so would be a clear perversion of the function of the
criminal processes and of the courts of justice. And in Hawpia CA, G.R. No. L-20047, June 30, 1967. 20 SCRA
536 the Court upheld the judgment against the petitioner for actual and moral damages and attorney's fees
after making a finding that petitioner, with persistence, filed at least six criminal complaints against respondent,
all of which were dismissed.
To constitute malicious prosecution, there must be proof that the prosecution was prompted by a design to vex
and humiliate a person and that it was initiated deliberately by the defendant knowing that the charges were
false and groundless [Manila Gas Corporation v. CA, G.R. No. L-44190, October 30,1980, 100 SCRA 602].
Concededly, the filing of a suit by itself, does not render a person liable for malicious prosecution [Inhelder
Corporation v. CA, G.R. No. 52358, May 301983122 SCRA 576]. The mere dismissal by the fiscal of the
criminal complaint is not a ground for an award of damages for malicious prosecution if there is no competent
evidence to show that the complainant had acted in bad faith [Sison v. David, G.R. No. L-11268, January
28,1961, 1 SCRA 60].
In the instant case, however, the trial court made a finding that petitioners acted in bad faith in filing the criminal
complaints against Tobias, observing that:
xxx

Defendants (petitioners herein) filed with the Fiscal's Office of Manila a total of six (6) criminal
cases, five (5) of which were for estafa thru falsification of commercial document and one for
violation of Art. 290 of the Revised Penal Code "discovering secrets thru seizure of
correspondence," and all were dismissed for insufficiency or lack of evidence." The dismissal of
four (4) of the cases was appealed to the Ministry of Justice, but said Ministry invariably
sustained the dismissal of the cases. As above adverted to, two of these cases were refiled with
the Judge Advocate General's Office of the Armed Forces of the Philippines to railroad plaintiffs
arrest and detention in the military stockade, but this was frustrated by a presidential decree
transferring criminal cases involving civilians to the civil courts.
xxx
To be sure, when despite the two (2) police reports embodying the findings of Lt. Dioscoro
Tagle, Chief Document Examiner of the Manila Police Department, clearing plaintiff of
participation or involvement in the fraudulent transactions complained of, despite the negative
results of the lie detector tests which defendants compelled plaintiff to undergo, and although
the police investigation was "still under follow-up and a supplementary report will be submitted
after all the evidence has been gathered," defendants hastily filed six (6) criminal cases with the
city Fiscal's Office of Manila, five (5) for estafa thru falsification of commercial document and
one (1) for violation of Art. 290 of the Revised Penal Code, so much so that as was to be
expected, all six (6) cases were dismissed, with one of the investigating fiscals, Asst. Fiscal de
Guia, commenting in one case that, "Indeed, the haphazard way this case was investigated is
evident. Evident likewise is the flurry and haste in the filing of this case against respondent
Tobias," there can be no mistaking that defendants would not but be motivated by malicious and
unlawful intent to harass, oppress, and cause damage to plaintiff.
xxx
[RTC Decision, pp. 5-6; Rollo, pp. 235-236].
In addition to the observations made by the trial court, the Court finds it significant that the criminal complaints
were filed during the pendency of the illegal dismissal case filed by Tobias against petitioners. This explains the
haste in which the complaints were filed, which the trial court earlier noted. But petitioners, to prove their good
faith, point to the fact that only six complaints were filed against Tobias when they could have allegedly filed
one hundred cases, considering the number of anomalous transactions committed against GLOBE MACKAY.
However, petitioners' good faith is belied by the threat made by Hendry after the filing of the first complaint that
one hundred more cases would be filed against Tobias. In effect, the possible filing of one hundred more cases
was made to hang like the sword of Damocles over the head of Tobias. In fine, considering the haste in which
the criminal complaints were filed, the fact that they were filed during the pendency of the illegal dismissal case
against petitioners, the threat made by Hendry, the fact that the cases were filed notwithstanding the two police
reports exculpating Tobias from involvement in the anomalies committed against GLOBE MACKAY, coupled by
the eventual dismissal of all the cases, the Court is led into no other conclusion than that petitioners were
motivated by malicious intent in filing the six criminal complaints against Tobias.
Petitioners next contend that the award of damages was excessive. In the complaint filed against petitioners,
Tobias prayed for the following: one hundred thousand pesos (P100,000.00) as actual damages; fifty thousand
pesos (P50,000.00) as exemplary damages; eight hundred thousand pesos (P800,000.00) as moral damages;
fifty thousand pesos (P50,000.00) as attorney's fees; and costs. The trial court, after making a computation of
the damages incurred by Tobias [See RTC Decision, pp. 7-8; Rollo, pp. 154-1551, awarded him the following:
eighty thousand pesos (P80,000.00) as actual damages; two hundred thousand pesos (P200,000.00) as moral
damages; twenty thousand pesos (P20,000.00) as exemplary damages; thirty thousand pesos (P30,000.00) as
attorney's fees; and, costs. It must be underscored that petitioners have been guilty of committing several

actionable tortious acts, i.e., the abusive manner in which they dismissed Tobias from work including the
baseless imputation of guilt and the harassment during the investigations; the defamatory language heaped on
Tobias as well as the scornful remark on Filipinos; the poison letter sent to RETELCO which resulted in Tobias'
loss of possible employment; and, the malicious filing of the criminal complaints. Considering the extent of the
damage wrought on Tobias, the Court finds that, contrary to petitioners' contention, the amount of damages
awarded to Tobias was reasonable under the circumstances.
Yet, petitioners still insist that the award of damages was improper, invoking the principle of damnum
absqueinjuria. It is argued that "[t]he only probable actual damage that plaintiff (private respondent herein)
could have suffered was a direct result of his having been dismissed from his employment, which was a valid
and legal act of the defendants-appellants (petitioners herein).lwph1.t " [Petition, p. 17; Rollo, p. 18].
According to the principle of damnum absque injuria, damage or loss which does not constitute a violation of a
legal right or amount to a legal wrong is not actionable [Escano v. CA, G.R. No. L-47207, September 25, 1980,
100 SCRA 197; See also Gilchrist v. Cuddy 29 Phil, 542 (1915); The Board of Liquidators v. Kalaw, G.R. No. L18805, August 14, 1967, 20 SCRA 987]. This principle finds no application in this case. It bears repeating that
even granting that petitioners might have had the right to dismiss Tobias from work, the abusive manner in
which that right was exercised amounted to a legal wrong for which petitioners must now be held liable.
Moreover, the damage incurred by Tobias was not only in connection with the abusive manner in which he was
dismissed but was also the result of several other quasi-delictual acts committed by petitioners.
Petitioners next question the award of moral damages. However, the Court has already ruled in Wassmer v.
Velez, G.R. No. L-20089, December 26, 1964, 12 SCRA 648, 653, that [p]er express provision of Article 2219
(10) of the New Civil Code, moral damages are recoverable in the cases mentioned in Article 21 of said Code."
Hence, the Court of Appeals committed no error in awarding moral damages to Tobias.
Lastly, the award of exemplary damages is impugned by petitioners. Although Article 2231 of the Civil Code
provides that "[i]n quasi-delicts, exemplary damages may be granted if the defendant acted with gross
negligence," the Court, in Zulueta v. Pan American World Airways, Inc., G.R. No. L- 28589, January 8, 1973,
49 SCRA 1, ruled that if gross negligence warrants the award of exemplary damages, with more reason is its
imposition justified when the act performed is deliberate, malicious and tainted with bad faith. As in
the Zuluetacase, the nature of the wrongful acts shown to have been committed by petitioners against Tobias
is sufficient basis for the award of exemplary damages to the latter.
WHEREFORE, the petition is hereby DENIED and the decision of the Court of Appeals in CA-G.R. CV No.
09055 is AFFIRMED.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr. and Bidin, JJ., concur.
Feliciano, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION
G.R. No. 132344

February 17, 2000

UNIVERSITY OF THE EAST, petitioner,

vs.
ROMEO A. JADER, respondent.
YNARES-SANTIAGO, J.:
May an educational institution be held liable for damages for misleading a student into believing that the latter
had satisfied all the requirements for graduation when such is not the case? This is the issue in the instant
petition for review premised on the following undisputed facts as summarized by the trial court and adopted by
the Court of Appeals (CA),1 to wit:
Plaintiff was enrolled in the defendants' College of Law from 1984 up to 1988. In the first semester of
his last year (School year 1987-1988), he failed to take the regular final examination in Practice Court I
for which he was given an incomplete grade (Exhibits "2", also Exhibit "H"). He enrolled for the second
semester as fourth year law student (Exhibit "A") and on February 1, 1988 he filed an application for the
removal of the incomplete grade given him by Professor Carlos Ortega (Exhibits "H-2", also Exhibit "2")
which was approved by Dean Celedonio Tiongson after payment of the required fee. He took the
examination on March 28, 1988. On May 30, 1988, Professor Carlos Ortega submitted his grade. It was
a grade of five (5). (Exhibits "H-4", also Exhibits "2-L", "2-N").1wphi1.nt
In the meantime, the Dean and the Faculty Members of the College of Law met to deliberate on who
among the fourth year students should be allowed to graduate. The plaintiff's name appeared in the
Tentative List of Candidates for graduation for the Degree of Bachelor of Laws (LL.B) as of Second
Semester (1987-1988) with the following annotation:
JADER ROMEO A.
Def. Conflict of Laws x-1-87-88, Practice Court I Inc., 1-87-88 C-1 to submit transcript with S.O.
(Exhibits "3", "3-C-1", "3-C-2").
The 35th Investitures & Commencement Ceremonies for the candidates of Bachelor of Laws was
scheduled on the 16th of April 1988 at 3:00 o'clock in the afternoon, and in the invitation for that
occasion the name of the plaintiff appeared as one of the candidates. (Exhibits "B", "B-6", "B-6-A"). At
the foot of the list of the names of the candidates there appeared however the following annotation:
This is a tentative list Degrees will be conferred upon these candidates who satisfactorily
complete requirements as stated in the University Bulletin and as approved of the Department
of Education, Culture and Sports (Exhibit "B-7-A").
The plaintiff attended the investiture ceremonies at F. dela Cruz Quadrangle, U.E., Recto Campus,
during the program of which he went up the stage when his name was called, escorted by her (sic)
mother and his eldest brother who assisted in placing the Hood, and his Tassel was turned from left to
right, and he was thereafter handed by Dean Celedonio a rolled white sheet of paper symbolical of the
Law Diploma. His relatives took pictures of the occasion (Exhibits "C" to "C-6", "D-3" to "D-11").
He tendered a blow-out that evening which was attended by neighbors, friends and relatives who
wished him good luck in the forthcoming bar examination. There were pictures taken too during the
blow-out (Exhibits "D" to "D-1").

He thereafter prepared himself for the bar examination. He took a leave of absence without pay from
his job from April 20, 1988 to September 30, 1988 (Exhibit "G") and enrolled at the pre-bar review class
in Far Eastern University. (Exhibits "F" to "F-2"). Having learned of the deficiency he dropped his review
class and was not able to take the bar examination.2
Consequently, respondent sued petitioner for damages alleging that he suffered moral shock, mental anguish,
serious anxiety, besmirched reputation, wounded feelings and sleepless nights when he was not able to take
the 1988 bar examinations arising from the latter's negligence. He prayed for an award of moral and exemplary
damages, unrealized income, attorney's fees, and costs of suit.
In its answer with counterclaim, petitioner denied liability arguing mainly that it never led respondent to believe
that he completed the requirements for a Bachelor of Laws degree when his name was included in the
tentative list of graduating students. After trial, the lower court rendered judgment as follows:
WHEREFORE, in view of the foregoing judgment is hereby rendered in favor of the plaintiff and against
the defendant ordering the latter to pay plaintiff the sum of THIRTY FIVE THOUSAND FOUR
HUNDRED SEVENTY PESOS (P35,470.00) with legal rate of interest from the filing of the complaint
until fully paid, the amount of FIVE THOUSAND PESOS (P5,000.00) as attorney's fees and the cost of
suit.
Defendant's counterclaim is, for lack of merit, hereby dismissed.
SO ORDERED.3
which on appeal by both parties was affirmed by the Court of Appeals (CA) with modification. The dispositive
portion of the CA decision reads:
WHEREFORE, in the light of the foregoing, the lower Court's Decision is hereby AFFIRMED with the
MODIFICATION that defendant-appellee, in addition to the sum adjudged by the lower court in favor of
plaintiff-appellant, is also ORDERED to pay plaintiff-appellant the amount of FIFTY THOUSAND
(P50,000.00) PESOS for moral damages. Costs against defendant-appellee.
SO ORDERED.4
Upon the denial of its motion for reconsideration, petitioner UE elevated the case to this Court on a petition for
review under Rule 45 of the Rules of Court, arguing that it has no liability to respondent Romeo A. Jader,
considering that the proximate and immediate cause of the alleged damages incurred by the latter arose out of
his own negligence in not verifying from the professor concerned the result of his removal exam.
The petition lacks merit.
When a student is enrolled in any educational or learning institution, a contract of education is entered into
between said institution and the student. The professors, teachers or instructors hired by the school are
considered merely as agents and administrators tasked to perform the school's commitment under the
contract. Since the contracting parties are the school and the student, the latter is not duty-bound to deal with
the former's agents, such as the professors with respect to the status or result of his grades, although nothing
prevents either professors or students from sharing with each other such information. The Court takes judicial
notice of the traditional practice in educational institutions wherein the professor directly furnishes his/her
students their grades. It is the contractual obligation of the school to timely inform and furnish sufficient notice
and information to each and every student as to whether he or she had already complied with all the
requirements for the conferment of a degree or whether they would be included among those who will
graduate. Although commencement exercises are but a formal ceremony, it nonetheless is not an ordinary

occasion, since such ceremony is the educational institution's way of announcing to the whole world that the
students included in the list of those who will be conferred a degree during the baccalaureate ceremony have
satisfied all the requirements for such degree. Prior or subsequent to the ceremony, the school has the
obligation to promptly inform the student of any problem involving the latter's grades and performance and also
most importantly, of the procedures for remedying the same.
Petitioner, in belatedly informing respondent of the result of the removal examination, particularly at a time
when he had already commenced preparing for the bar exams, cannot be said to have acted in good faith.
Absence of good faith must be sufficiently established for a successful prosecution by the aggrieved party in a
suit for abuse of right under Article 19 of the Civil Code. Good faith connotes an honest intention to abstain
from taking undue advantage of another, even though the forms and technicalities of the law, together with the
absence of all information or belief of facts, would render the transaction unconscientious.5 It is the school that
has access to those information and it is only the school that can compel its professors to act and comply with
its rules, regulations and policies with respect to the computation and the prompt submission of grades.
Students do not exercise control, much less influence, over the way an educational institution should run its
affairs, particularly in disciplining its professors and teachers and ensuring their compliance with the school's
rules and orders. Being the party that hired them, it is the school that exercises general supervision and
exclusive control over the professors with respect to the submission of reports involving the students' standing.
Exclusive control means that no other person or entity had any control over the instrumentality which caused
the damage or injury.6
The college dean is the senior officer responsible for the operation of an academic program, enforcement of
rules and regulations, and the supervision of faculty and student services.7 He must see to it that his own
professors and teachers, regardless of their status or position outside of the university, must comply with the
rules set by the latter. The negligent act of a professor who fails to observe the rules of the school, for instance
by not promptly submitting a student's grade, is not only imputable to the professor but is an act of the school,
being his employer.
Considering further, that the institution of learning involved herein is a university which is engaged in legal
education, it should have practiced what it inculcates in its students, more specifically the principle of good
dealings enshrined in Articles 19 and 20 of the Civil Code which states:
Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty and good faith.
Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall
indemnify the latter for the same.
Art. 19 was intended to expand the concept of torts by granting adequate legal remedy for the untold number
of moral wrongs which is impossible for human foresight to provide specifically in statutory law.8 In civilized
society, men must be able to assume that others will do them no intended injury that others will commit no
internal aggressions upon them; that their fellowmen, when they act affirmatively will do so with due care which
the ordinary understanding and moral sense of the community exacts and that those with whom they deal in
the general course of society will act in good faith. The ultimate thing in the theory of liability is justifiable
reliance under conditions of civilized society.9 Schools and professors cannot just take students for granted and
be indifferent to them, for without the latter, the former are useless.
Educational institutions are duty-bound to inform the students of their academic status and not wait for the
latter to inquire from the former. The conscious indifference of a person to the rights or welfare of the
person/persons who may be affected by his act or omission can support a claim for damages.10 Want of care to
the conscious disregard of civil obligations coupled with a conscious knowledge of the cause naturally
calculated to produce them would make the erring party liable.11 Petitioner ought to have known that time was

of the essence in the performance of its obligation to inform respondent of his grade. It cannot feign ignorance
that respondent will not prepare himself for the bar exams since that is precisely the immediate concern after
graduation of an LL.B. graduate. It failed to act seasonably. Petitioner cannot just give out its student's grades
at any time because a student has to comply with certain deadlines set by the Supreme Court on the
submission of requirements for taking the bar. Petitioner's liability arose from its failure to promptly inform
respondent of the result of an examination and in misleading the latter into believing that he had satisfied all
requirements for the course. Worth quoting is the following disquisition of the respondent court:
It is apparent from the testimony of Dean Tiongson that defendant-appellee University had been
informed during the deliberation that the professor in Practice Court I gave plaintiff-appellant a failing
grade. Yet, defendant-appellee still did not inform plaintiff-appellant of his failure to complete the
requirements for the degree nor did they remove his name from the tentative list of candidates for
graduation. Worse, defendant-appellee university, despite the knowledge that plaintiff-appellant failed in
Practice Court I, againincluded plaintiff-appellant's name in the "tentative list of candidates for
graduation which was prepared after the deliberation and which became the basis for the
commencement rites program. Dean Tiongson reasons out that plaintiff-appellant's name was allowed
to remain in the tentative list of candidates for graduation in the hope that the latter would still be able to
remedy the situation in the remaining few days before graduation day. Dean Tiongson, however, did not
explain how plaintiff appellant Jader could have done something to complete his deficiency if
defendant-appellee university did not exert any effort to inform plaintiff-appellant of his failing grade in
Practice Court I.12
Petitioner cannot pass on its blame to the professors to justify its own negligence that led to the delayed relay
of information to respondent. When one of two innocent parties must suffer, he through whose agency the loss
occurred must bear it.13 The modern tendency is to grant indemnity for damages in cases where there is abuse
of right, even when the act is not illicit.14 If mere fault or negligence in one's acts can make him liable for
damages for injury caused thereby, with more reason should abuse or bad faith make him liable. A person
should be protected only when he acts in the legitimate exercise of his right, that is, when he acts with
prudence and in good faith, but not when he acts with negligence or abuse.15
However, while petitioner was guilty of negligence and thus liable to respondent for the latter's actual damages,
we hold that respondent should not have been awarded moral damages. We do not agree with the Court of
Appeals' findings that respondent suffered shock, trauma and pain when he was informed that he could not
graduate and will not be allowed to take the bar examinations. At the very least, it behooved on respondent to
verify for himself whether he has completed all necessary requirements to be eligible for the bar examinations.
As a senior law student, respondent should have been responsible enough to ensure that all his affairs,
specifically those pertaining to his academic achievement, are in order. Given these considerations, we fail to
see how respondent could have suffered untold embarrassment in attending the graduation rites, enrolling in
the bar review classes and not being able to take the bar exams. If respondent was indeed humiliated by his
failure to take the bar, he brought this upon himself by not verifying if he has satisfied all the requirements
including his school records, before preparing himself for the bar examination. Certainly, taking the bar
examinations does not only entail a mental preparation on the subjects thereof; there are also prerequisites of
documentation and submission of requirements which the prospective examinee must meet.
WHEREFORE, the assailed decision of the Court of Appeals is AFFIRMED with MODIFICATION. Petitioner is
ORDERED to PAY respondent the sum of Thirty-five Thousand Four Hundred Seventy Pesos (P35,470.00),
with legal interest of 6% per annum computed from the date of filing of the complaint until fully paid; the
amount of Five Thousand Pesos (P5,000.00) as attorney's fees; and the costs of the suit. The award of moral
damages is DELEIED.1wphi1.nt
SO ORDERED.

Davide, Jr., C.J., Kapunan and Pardo, JJ., concur.

Puno, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 164273

March 28, 2007

EMMANUEL B. AZNAR, Petitioner,

vs.
CITIBANK, N.A., (Philippines), Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before this Court is a Petition for Review assailing the Decision1 of the Court of Appeals (CA) in CA-G.R. CV
No. 62554 dated January 30, 2004 which set aside the November 25, 1998 Order of the Regional Trial Court
(RTC) Branch 10, Cebu City and reinstated the Decision of RTC Branch 20 of Cebu City dated May 29, 1998
in Civil Case No. CEB-16474; and the CA Resolution dated May 26, 2004 denying petitioners motion for
reconsideration.
The facts are as follows:
Emmanuel B. Aznar (Aznar), a known businessman2 in Cebu, is a holder of a Preferred Master Credit Card
(Mastercard) bearing number 5423-3920-0786-7012 issued by Citibank with a credit limit of P150,000.00. As
he and his wife, Zoraida, planned to take their two grandchildren, Melissa and Richard Beane, on an Asian
tour, Aznar made a total advance deposit of P485,000.00 with Citibank with the intention of increasing his
credit limit toP635,000.00.3
With the use of his Mastercard, Aznar purchased plane tickets to Kuala Lumpur for his group
worth P237,000.00. On July 17, 1994, Aznar, his wife and grandchildren left Cebu for the said destination.4
Aznar claims that when he presented his Mastercard in some establishments in Malaysia, Singapore and
Indonesia, the same was not honored.5 And when he tried to use the same in Ingtan Tour and Travel Agency
(Ingtan Agency) in Indonesia to purchase plane tickets to Bali, it was again dishonored for the reason that his
card was blacklisted by Citibank. Such dishonor forced him to buy the tickets in cash.6 He further claims that
his humiliation caused by the denial of his card was aggravated when Ingtan Agency spoke of swindlers trying
to use blacklisted cards.7 Aznar and his group returned to the Philippines on August 10, 1994.8
On August 26, 1994, Aznar filed a complaint for damages against Citibank, docketed as Civil Case No. CEB16474 and raffled to RTC Branch 20, Cebu City, claiming that Citibank fraudulently or with gross negligence
blacklisted his Mastercard which forced him, his wife and grandchildren to abort important tour destinations
and prevented them from buying certain items in their tour.9 He further claimed that he suffered mental
anguish, serious anxiety, wounded feelings, besmirched reputation and social humiliation due to the wrongful
blacklisting of his card.10 To prove that Citibank blacklisted his Mastercard, Aznar presented a computer printout, denominated as ON-LINE AUTHORIZATIONS FOREIGN ACCOUNT ACTIVITY REPORT, issued to him

by Ingtan Agency (Exh. "G") with the signature of one Victrina Elnado Nubi (Nubi)11 which shows that his card
in question was "DECL OVERLIMIT" or declared over the limit.12
Citibank denied the allegation that it blacklisted Aznars card. It also contended that under the terms and
conditions governing the issuance and use of its credit cards, Citibank is exempt from any liability for the
dishonor of its cards by any merchant affiliate, and that its liability for any action or incident which may be
brought against it in relation to the issuance and use of its credit cards is limited to P1,000.00 or the actual
damage proven whichever is lesser.13
To prove that they did not blacklist Aznars card, Citibanks Credit Card Department Head, Dennis Flores,
presented Warning Cancellation Bulletins which contained the list of its canceled cards covering the period of
Aznars trip.14
On May 29, 1998, RTC Branch 20, Cebu City, through Judge Ferdinand J. Marcos, rendered its decision
dismissing Aznars complaint for lack of merit.15 The trial court held that as between the computer printout16presented by Aznar and the Warning Cancellation Bulletins17 presented by Citibank, the latter had more
weight as their due execution and authenticity were duly established by Citibank.18 The trial court also held that
even if it was shown that Aznars credit card was dishonored by a merchant establishment, Citibank was not
shown to have acted with malice or bad faith when the same was dishonored.19
Aznar filed a motion for reconsideration with motion to re-raffle the case saying that Judge Marcos could not be
impartial as he himself is a holder of a Citibank credit card.20 The case was re-raffled21 and on November 25,
1998, the RTC, this time through Judge Jesus S. De la Pea of Branch 10 of Cebu City, issued an Order
granting Aznars motion for reconsideration, as follows:
WHEREFORE, the Motion for Reconsideration is hereby GRANTED. The DECISION dated May 29, 1998 is
hereby reconsidered, and consequently, the defendant is hereby condemned liable to pay the following sums
of money:
a) P10,000,000.00 as moral damages;
b) P5,000,000.00 as exemplary damages;
c) P1,000,000.00 as attorneys fees; and
d) P200,000.00 as litigation expenses.22
Judge De la Pea ruled that: it is improbable that a man of Aznars stature would fabricate Exh. "G" or the
computer print-out which shows that Aznars Mastercard was dishonored for the reason that it was declared
over the limit; Exh. "G" was printed out by Nubi in the ordinary or regular course of business in the modern
credit card industry and Nubi was not able to testify as she was in a foreign country and cannot be reached by
subpoena; taking judicial notice of the practice of automated teller machines (ATMs) and credit card facilities
which readily print out bank account status, Exh. "G" can be received as prima facie evidence of the dishonor
of Aznars Mastercard; no rebutting evidence was presented by Citibank to prove that Aznars Mastercard was
not dishonored, as all it proved was that said credit card was not included in the blacklisted cards; when
Citibank accepted the additional deposit of P485,000.00 from Aznar, there was an implied novation and
Citibank was obligated to increase Aznars credit limit and ensure that Aznar will not encounter any
embarrassing situation with the use of his Mastercard; Citibanks failure to comply with its obligation constitutes
gross negligence as it caused Aznar inconvenience, mental anguish and social humiliation; the fine prints in
the flyer of the credit card limiting the liability of the bank to P1,000.00 or the actual damage proven, whichever
is lower, is a contract of adhesion which must be interpreted against Citibank.23
Citibank filed an appeal with the CA and its counsel filed an administrative case against Judge De la Pea for
grave misconduct, gross ignorance of the law and incompetence, claiming among others that said judge

rendered his decision without having read the transcripts. The administrative case was held in abeyance
pending the outcome of the appeal filed by Citibank with the CA.24lawphi1.net
On January 30, 2004, the CA rendered its Decision granting Citibanks appeal thus:
WHEREFORE, the instant appeal is GRANTED. The assailed order of the Regional Trial Court, 7th Judicial
Region, Branch 10, Cebu City, in Civil Case No. CEB-16474, is hereby SET ASIDE and the decision, dated 29
May 1998 of the Regional Trial Court, 7th Judicial Region, Branch 20, Cebu City in this case is REINSTATED.
SO ORDERED.25
The CA ruled that: Aznar had no personal knowledge of the blacklisting of his card and only presumed the
same when it was dishonored in certain establishments; such dishonor is not sufficient to prove that his card
was blacklisted by Citibank; Exh. "G" is an electronic document which must be authenticated pursuant to
Section 2, Rule 5 of the Rules on Electronic Evidence26 or under Section 20 of Rule 132 of the Rules of
Court27 by anyone who saw the document executed or written; Aznar, however, failed to prove the authenticity
of Exh. "G", thus it must be excluded; the unrefuted testimony of Aznar that his credit card was dishonored by
Ingtan Agency and certain establishments abroad is not sufficient to justify the award of damages in his favor,
absent any showing that Citibank had anything to do with the said dishonor; Citibank had no absolute control
over the actions of its merchant affiliates, thus it should not be held liable for the dishonor of Aznars credit card
by said establishments.28
Aznar filed a motion for reconsideration which the CA dismissed in its Resolution dated May 26, 2004.29
Parenthetically, the administrative case against Judge De la Pea was activated and on April 29, 2005, the
Courts Third Division30 found respondent judge guilty of knowingly rendering an unjust judgment and ordered
his suspension for six months. The Court held that Judge De la Pea erred in basing his Order on a
manifestation submitted by Aznar to support his Motion for Reconsideration, when no copy of such
manifestation was served on the adverse party and it was filed beyond office hours. The Court also noted that
Judge De la Pea made an egregiously large award of damages in favor of Aznar which opened himself to
suspicion.31
Aznar now comes before this Court on a petition for review alleging that: the CA erroneously made its own
factual finding that his Mastercard was not blacklisted when the matter of blacklisting was already a non-issue
in the November 25, 1998 Order of the RTC; the RTC found that Aznars Mastercard was dishonored for the
reason that it was declared over the credit limit; this factual finding is supported by Exh. "G" and by his
(Aznars) testimony; the issue of dishonor on the ground of DECL OVERLIMIT, although not alleged in the
complaint, was tried with the implied consent of the parties and should be treated as if raised in the pleadings
pursuant to Section 5, Rule 10 of the Rules of Civil Procedure;32 Exh. "G" cannot be excluded as it qualifies as
an electronic evidence following the Rules on Electronic Evidence which provides that print-outs are also
originals for purposes of the Best Evidence Rule; Exh. "G" has remained complete and unaltered, apart from
the signature of Nubi, thus the same is reliable for the purpose for which it was generated; the RTC judge
correctly credited the testimony of Aznar on the issuance of the computer print-out as Aznar saw that it was
signed by Nubi; said testimony constitutes the "other evidence showing the integrity and reliability of the printout to the satisfaction of the judge" which is required under the Rules on Electronic Evidence; the trial court
was also correct in finding that Citibank was grossly negligent in failing to credit the additional deposit and
make the necessary entries in its systems to prevent Aznar from encountering any embarrassing situation with
the use of his Mastercard.33
Citibank, in its Comment, contends that: Aznar never had personal knowledge that his credit card was
blacklisted as he only presumed such fact; the issue of dishonor on the ground that the card was declared over
the limit was also never tried with the implied consent of both parties; Aznars self-serving testimony is not
sufficient to prove the integrity and reliability of Exh. "G"; Aznar did not declare that it was Nubi who printed the
document and that said document was printed in his presence as he merely said that the print-out was
provided him; there is also no annotation on Exh. "G" to establish that it was Nubi who printed the same;
assuming further that Exh. "G" is admissible and Aznars credit card was dishonored, Citibank still cannot be

held liable for damages as it only shows that Aznars credit card was dishonored for having been declared over
the limit; Aznars cause of action against Citibank hinged on the alleged blacklisting of his card which
purportedly caused its dishonor; dishonor alone, however, is not sufficient to award Aznar damages as he must
prove that the dishonor was caused by a grossly negligent act of Citibank; the award of damages in favor of
Aznar was based on Article 117034 of the Civil Code, i.e., there was fraud, negligence or delay in the
performance of its obligation; there was no proof, however that Citibank committed fraud or delay or that it
contravened its obligations towards Aznar; the terms and conditions of the credit card cannot be considered as
a contract of adhesion since Aznar was entirely free to reject the card if he did not want the conditions
stipulated therein; a person whose stature is such that he is expected to be more prudent with respect to his
transactions cannot later on be heard to complain for being ignorant or having been forced into merely
consenting to the contract.35
In his Reply, Aznar contended that to a layman, the term "blacklisting" is synonymous with the words "hot list"
or "declared overlimit"; and whether his card was blacklisted or declared over the limit, the same was
dishonored due to the fault or gross negligence of Citibank.36
Aznar also filed a Memorandum raising as issues the following:
I. Whether or not the augmentation deposit in the amount of P485,000.00 of the Petitioner constitutes
relative extinctive novation;
II. Whether or not the purchases made by Petitioner were beyond his credit limit;
III. Whether or not the issues of dishonor by reason of overlimit was tried with the consent of the
parties;
IV. Whether or not the "On Line Authorization Report" is an electronic document."
V. Whether or not the "On Line Authorization Report" constitutes electronic evidence;
VI. Whether or not the agreement between the parties is a contract of adhesion;
VII. Whether or not the Respondent is negligent in not crediting the deposits of the Respondent.37
Aznar further averred in his Memorandum that Citibank assured him that with the use of his Mastercard, he
would never be turned down by any merchant store, and that under Section 43, Rule 130 of the Rules of Court,
Exh. "G" is admissible in evidence.38
Citibank also filed a Memorandum reiterating its earlier arguments.39
Stripped to its essentials, the only question that needs to be answered is: whether Aznar has established his
claim against Citibank.
The answer is no.
It is basic that in civil cases, the burden of proof rests on the plaintiff to establish his case based on a
preponderance of evidence. The party that alleges a fact also has the burden of proving it.40
In the complaint Aznar filed before the RTC, he claimed that Citibank blacklisted his Mastercard which caused
its dishonor in several establishments in Malaysia, Singapore, and Indonesia, particularly in Ingtan Agency in
Indonesia where he was humiliated when its staff insinuated that he could be a swindler trying to use a
blacklisted card.
As correctly found by the RTC in its May 29, 1998 Decision, Aznar failed to prove with a preponderance of
evidence that Citibank blacklisted his Mastercard or placed the same on the "hot list."41

Aznar in his testimony admitted that he had no personal knowledge that his Mastercard was blacklisted by
Citibank and only presumed such fact from the dishonor of his card.
Q Now, paragraph 12 also states and I quote: "its entry in the "hot" list was confirmed to be authentic".
Now, who confirmed that the blacklisting of your Preferred Citibank Mastercard was authentic?
A. Okey. When I presented this Mastercard, my card rather, at the Merchants store, I do not know, they called
up somebody for verification then later they told me that "your card is being denied". So, I am not in a position
to answer that. I do not know whom they called up; where they verified. So, when it is denied thats
presumed to be blacklisted.
Q. So the word that was used was denied?
A. Denied.
Q. And after you were told that your card was denied you presumed that it was blacklisted?
A. Definitely.
Q. So your statement that your card was allegedly blacklisted is only your presumption drawn from the
fact, from your allegations, that it was denied at the merchandise store?
A. Yes, sir.42 (Emphasis supplied)
The dishonor of Aznars Mastercard is not sufficient to support a conclusion that said credit card was
blacklisted by Citibank, especially in view of Aznars own admission that in other merchant establishments in
Kuala Lumpur and Singapore, his Mastercard was accepted and honored.43
Aznar puts much weight on the ON-LINE AUTHORIZATION FOREIGN ACCOUNT ACTIVITY REPORT, a
computer print-out handed to Aznar by Ingtan Agency, marked as Exh. "G", to prove that his Mastercard was
dishonored for being blacklisted. On said print-out appears the words "DECL OVERLIMIT" opposite Account
No. 5423-3920-0786-7012.
As correctly pointed out by the RTC and the CA, however, such exhibit cannot be considered admissible as its
authenticity and due execution were not sufficiently established by petitioner.
The prevailing rule at the time of the promulgation of the RTC Decision is Section 20 of Rule 132 of the Rules
of Court. It provides that whenever any private document offered as authentic is received in evidence, its due
execution and authenticity must be proved either by (a) anyone who saw the document executed or written; or
(b) by evidence of the genuineness of the signature or handwriting of the maker.
Aznar, who testified on the authenticity of Exh. "G," did not actually see the document executed or written,
neither was he able to provide evidence on the genuineness of the signature or handwriting of Nubi, who
handed to him said computer print-out. Indeed, all he was able to allege in his testimony are the following:
Q I show to you a Computer Print Out captioned as On Line Authorization Activity Report where it is shown that
the Preferred Master Card Number 5423392007867012 was denied as per notation on the margin of this
Computer Print Out, is this the document evidencing the dishonor of your Preferred Master Card?
xxxx
A Yes sir, after that Ingtan incident, I went straight to the Service Agency there and on the left hand side you
will be able to see the name of the person in-charged [sic] there certifying that really my card is being
blacklisted and there is the signature there of the agency.

ATTY. NAVARRO:
The witness, your honor, is pointing to the signature over the handwritten name of Victrina Elnado Nubi which I
pray, your honor, that the Computer Print Out be marked as our Exhibit "G" and the remarks at the left hand
bottom portion of Victorina Elnado Nubi with her signature thereon be encircled and be marked as our Exhibit
"G-1".
xxxx
Q Mr. Aznar, where did you secure this Computer Print Out marked as Exhibit "G"?
A This is provided by that Agency, your honor. They were the ones who provided me with this. So what
the lady did, she gave me the Statement and I requested her to sign to show proof that my Preferred
Master Card has been rejected.44 (Emphasis supplied).
Even if examined under the Rules on Electronic Evidence, which took effect on August 1, 2001, and which is
being invoked by Aznar in this case, the authentication of Exh. "G" would still be found wanting.
Pertinent sections of Rule 5 read:
Section 1. Burden of proving authenticity. The person seeking to introduce an electronic document in any
legal proceeding has the burden of proving its authenticity in the manner provided in this Rule.
Section 2. Manner of authentication. Before any private electronic document offered as authentic is received
in evidence, its authenticity must be proved by any of the following means:
(a) by evidence that it had been digitally signed by the person purported to have signed the same;
(b) by evidence that other appropriate security procedures or devices as may be authorized by the
Supreme Court or by law for authentication of electronic documents were applied to the document; or
(c) by other evidence showing its integrity and reliability to the satisfaction of the judge.
Aznar claims that his testimony complies with par. (c), i.e., it constitutes the "other evidence showing integrity
and reliability of Exh. "G" to the satisfaction of the judge." The Court is not convinced. Aznars testimony that
the person from Ingtan Agency merely handed him the computer print-out and that he thereafter asked said
person to sign the same cannot be considered as sufficient to show said print-outs integrity and reliability. As
correctly pointed out by Judge Marcos in his May 29, 1998 Decision, Exh. "G" does not show on its face that it
was issued by Ingtan Agency as Aznar merely mentioned in passing how he was able to secure the print-out
from the agency; Aznar also failed to show the specific business address of the source of the computer printout because while the name of Ingtan Agency was mentioned by Aznar, its business address was not reflected
in the print-out.45
Indeed, Aznar failed to demonstrate how the information reflected on the print-out was generated and how the
said information could be relied upon as true. In fact, Aznar to repeat, testified as follows:
ATTY. NERI
Q Now, paragraph 12 also states and I quote: "its entry in the "hot" list was confirmed to be authentic"
Now, who confirmed that the blacklisting of your Preferred Citibank Mastercard was authentic?
A Okey. When I presented this Mastercard, my card rather, at the Merchants store, I do not know, they called
up somebody for verification then later they told me that "your card is being denied". So, I am not in a position

to answer that. I do not know whom they called up; where they verified. So, when it is denied thats
presumed to be blacklisted.46 (Emphasis supplied)
Aznar next invokes Section 43 of Rule 130 of the Rules of Court, which pertains to entries in the course of
business, to support Exh. "G". Said provision reads:
Sec. 43. Entries in the course of business. Entries made at, or near the time of the transactions to which they
refer, by a person deceased or unable to testify, who was in a position to know the facts therein stated, may be
received as prima facie evidence, if such person made the entries in his professional capacity or in the
performance of duty and in the ordinary or regular course of business or duty.
Under this rule, however, the following conditions are required:
1. the person who made the entry must be dead, or unable to testify;
2. the entries were made at or near the time of the transactions to which they refer;
3. the entrant was in a position to know the facts stated in the entries;
4. the entries were made in his professional capacity or in the performance of a duty, whether legal,
contractual, moral or religious; and
5. the entries were made in the ordinary or regular course of business or duty.47
As correctly pointed out by the RTC in its May 29, 1998 Decision, there appears on the computer print-out the
name of a certain "Victrina Elnado Nubi" and a signature purportedly belonging to her, and at the left dorsal
side were handwritten the words "Sorry for the delay since the records had to be retrieved. Regards. Darryl
Mario." It is not clear therefore if it was Nubi who encoded the information stated in the print-out and was the
one who printed the same. The handwritten annotation signed by a certain Darryl Mario even suggests that it
was Mario who printed the same and only handed the print-out to Nubi. The identity of the entrant, required by
the provision above mentioned, was therefore not established. Neither did petitioner establish in what
professional capacity did Mario or Nubi make the entries, or whether the entries were made in the performance
of their duty in the ordinary or regular course of business or duty.
And even if Exh. "G" is admitted as evidence, it only shows that the use of the credit card of petitioner was
denied because it was already over the limit. There is no allegation in the Complaint or evidence to show that
there was gross negligence on the part of Citibank in declaring that the credit card has been used over the
limit.
The Court is also perplexed that stated on Exh. "G" is the amount of "6,289,195.10" opposite petitioner's
account number, which data, petitioner did not clarify.48 As plaintiff in this case, it was incumbent on him to
prove that he did not actually incur the said amount which is above his credit limit. As it is, the Court cannot see
how Exh. "G" could help petitioner's claim for damages.
The claim of petitioner that Citibank blacklisted his card through fraud or gross negligence is likewise
effectively negated by the evidence of Citibank which was correctly upheld by the RTC and the CA, to wit:
xxx Mr. Dennis Flores, the Head of the Credit Card Department of defendant Bank, presented documents
known as Warning Cancellation Bulletin for July 10, 17, 24, and 31, 1994 (Exhibits 3, 3-1 to 3-38, 4, 4-1 to
4-38 5, 5-1 to 5-39 and 6, 6-1 to 6-39), for August 7, 1994 (Exhibit[s] 7, 7-1 to 7-37), for August 8,
1994 (Exhibit[s] 8, 8-1 to 8-20) which show that plaintiffs Citibank preferred mastercard was not placed in a
hot list or was not blacklisted.
The Warning Cancellation Bulletins (WCB) (Exhibits 3, 4, 5, 6, 7, 8 and their submarkings) which covered
the period of four (4) days in July 1994 (from July 10, 17, 24 and 31, 1994), and two (2) days in August 1994,

(August 7 and 8, 1994), when plaintiff traveled in the aforementioned Asian countries showed that said Citibank
preferred mastercard had never been placed in a hot list or the same was blacklisted, let alone the fact that all
the credit cards which had been cancelled by the defendant bank were all contained, reported and listed in
said Warning Cancellation Bulletin which were issued and released on a regular basis.
These three hundred (300) Warning Cancellation Bulletins pieces of documentary proofs, all in all, adduced by
defendant pointed to the fact that said plaintiffs credit car (sic) was not among those found in said bulletins as
having been cancelled for the period for which the said bulletins had been issued.
Between said computer print out (Exhibit G) and the Warning Cancellation Bulletins (Exhibits 3 to 8 and their
submarkings) the latter documents adduced by defendant are entitled to greater weight than that said
computer print out presented by plaintiff that bears on the issue of whether the plaintiffs preferred master card
was actually placed in the hot list or blacklisted for the following reasons:
The first reason is that the due execution and authentication of these Warning Cancellation Bulletins (or WCB)
have been duly established and identified by defendants own witness, Dennis Flores, one of the banks
officers, who is the head of its credit card department, and, therefore, competent to testify on the said bulletins
as having been issued by the defendant bank showing that plaintiffs preferred master credit card was never
blacklisted or placed in the Banks hot list. But on the other hand, plaintiffs computer print out (Exhibit G)
was never authenticated or its due execution had never been duly established. Thus, between a set of duly
authenticated commercial documents, the Warning Cancellation Bulletins (Exhibits 3 to 8 and their
submarkings), presented by defendants (sic) and an unauthenticated private document, plaintiffs computer
print out (Exhibit G), the former deserves greater evidentiary weight supporting the findings of this Court that
plaintiffs preferred master card (Exhibit 1) had never been blacklisted at all or placed in a so-called hot list by
defendant.49
Petitioner next argues that with the additional deposit he made in his account which was accepted by Citibank,
there was an implied novation and Citibank was under the obligation to increase his credit limit and make the
necessary entries in its computerized systems in order that petitioner may not encounter any embarrassing
situation with the use of his credit card. Again, the Court finds that petitioner's argument on this point has no
leg to stand on.
Citibank never denied that it received petitioners additional deposit.50 It even claimed that petitioner was able
to purchase plane tickets from Cebu to Kuala Lumpur in the amount of P237,170.00, which amount was
beyond hisP150,000.00 limit, because it was able to credit petitioners additional deposit to his account. Flores
of Citibank testified:
COURT:
Q When was this ticket purchased, after the account was augmented
or before?
A After the account was augmented, Your Honor, because there is no way we can approve a P250,000.00
purchase with a P150,000.00 credit limit.51
xxx
ATTY. NERI:
For the record, your honor, the deposit of P450,000.00 was made as per exhibit of the plaintiff on June
28. The purchase of the tickets amount to P237,000.00 was approved and debited on the account of Mr.
Aznar on July 20, your honor. The deposit was made about a month before the purchase of the tickets
as per documentary exhibits, your honor.

COURT:
So, Atty. Navarro, what do you say to that explanation?
ATTY. NAVARRO [counsel of petitioner]:
That is correct, your honor, that is borne out by the records, your honor. (Emphasis supplied)
COURT: (to witness)
Q So, I think Atty. Navarro is only after whether a credit line could be extended?
A Yes, your honor.
Q Even if there is no augmenting?
A No, sir, it is not possible. So, the only way the P237,000.00 transaction could be approved was by way
of advance payment which actually happened in this case because there is no way that the P237,000.00
can be approved with the P150,000.00 credit limit.52 (Emphasis supplied)
The allegations of blacklisting not having been proved, is Citibank liable for damages for the dishonor of
Aznars Mastercard?
Again, the answer is no.
Citibank, in its attempt to evade liability, invokes paragraphs 7 and 15 of the terms and conditions governing
the issuance of its Mastercard which read:
7. MERCHANT AFFILIATES. [Citibank is] not responsible if the Card is not honored by any merchant affiliate
for any reason. Furthermore, [the cardholder] will not hold [Citibank] responsible for any defective product or
service purchased through the Card.
xxxx
15. LIMITATION OF LIABILITY. In any action arising from this agreement or any incident thereto which [the
cardholder] or any other party may file against [Citibank], [Citibanks] liability shall not exceed One Thousand
Pesos [P1,000.00] or the actual damages proven, whichever is lesser.53
On this point, the Court agrees with Aznar that the terms and conditions of Citibanks Mastercard constitute a
contract of adhesion. It is settled that contracts between cardholders and the credit card companies are
contracts of adhesion, so-called, because their terms are prepared by only one party while the other merely
affixes his signature signifying his adhesion thereto.54
In this case, paragraph 7 of the terms and conditions states that "[Citibank is] not responsible if the Card is not
honored by any merchant affiliate for any reason x x x". While it is true that Citibank may have no control of all
the actions of its merchant affiliates, and should not be held liable therefor, it is incorrect, however, to give it
blanket freedom from liability if its card is dishonored by any merchant affiliate for any reason. Such phrase
renders the statement vague and as the said terms and conditions constitute a contract of adhesion, any
ambiguity in its provisions must be construed against the party who prepared the contract,55 in this case
Citibank.
Citibank also invokes paragraph 15 of its terms and conditions which limits its liability to P1,000.00 or the
actual damage proven, whichever is lesser.

Again, such stipulation cannot be considered as valid for being unconscionable as it precludes payment of a
larger amount even though damage may be clearly proven. This Court is not precluded from ruling out blind
adherence to the terms of a contract if the attendant facts and circumstances show that they should be ignored
for being obviously too one-sided.56
The invalidity of the terms and conditions being invoked by Citibank, notwithstanding, the Court still cannot
award damages in favor of petitioner.
It is settled that in order that a plaintiff may maintain an action for the injuries of which he complains, he must
establish that such injuries resulted from a breach of duty which the defendant owed to the plaintiff a
concurrence of injury to the plaintiff and legal responsibility by the person causing it. The underlying basis for
the award of tort damages is the premise that an individual was injured in contemplation of law; thus there
must first be a breach before damages may be awarded and the breach of such duty should be the proximate
cause of the injury.57
It is not enough that one merely suffered sleepless nights, mental anguish or serious anxiety as a result of the
actuations of the other party. It is also required that a culpable act or omission was factually established, that
proof that the wrongful act or omission of the defendant is shown as the proximate cause of the damage
sustained by the claimant and that the case is predicated on any of the instances expressed or envisioned by
Arts. 221958 and 222059 of the Civil Code.60
In culpa contractual or breach of contract, moral damages are recoverable only if the defendant has acted
fraudulently or in bad faith, or is found guilty of gross negligence amounting to bad faith, or in wanton disregard
of his contractual obligations. The breach must be wanton, reckless, malicious or in bad faith, oppressive or
abusive.61
While the Court commiserates with Aznar for whatever undue embarrassment he suffered when his credit card
was dishonored by Ingtan Agency, especially when the agencys personnel insinuated that he could be a
swindler trying to use blacklisted cards, the Court cannot grant his present petition as he failed to show by
preponderance of evidence that Citibank breached any obligation that would make it answerable for said
suffering.
As the Court pronounced in BPI Express Card Corporation v. Court of Appeals,62
We do not dispute the findings of the lower court that private respondent suffered damages as a result of the
cancellation of his credit card. However, there is a material distinction between damages and injury. Injury is
the illegal invasion of a legal right; damage is the loss, hurt, or harm which results from the injury; and
damages are the recompense or compensation awarded for the damage suffered. Thus, there can be damage
without injury to those instances in which the loss or harm was not the result of a violation of a legal duty. In
such cases, the consequences must be borne by the injured person alone, the law affords no remedy for
damages resulting from an act which does not amount to a legal injury or wrong. These situations are often
called damnum absque injuria.63
WHEREFORE, the petition is denied for lack of merit.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

ROMEO J. CALLEJO, SR.

Associate Justice

MINITA V. CHICO-NAZARIO
Asscociate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice
AT T E S TAT I O N
I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby
certified that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 161188

June 13, 2008

Heirs of PURISIMA NALA, represented by their attorney-in-fact EFEGENIA DIGNA DUYAN, petitioners,
vs.
ARTEMIO CABANSAG, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
This is a petition for review under Rule 45 of the Rules of Court assailing the Court of Appeals (CA)
Decision1dated December 19, 2002 and Resolution2 dated October 28, 2003, dismissing petitioners' appeal
and affirming with modification the Regional Trial Court (RTC) Decision dated August 10, 1994 rendered in
Civil Case No. Q-91-10541.
The facts of the case are as follows:
Artemio Cabansag (respondent) filed Civil Case No. Q-91-10541 for damages in October 1991. According to
respondent, he bought a 50-square meter property from spouses Eugenio Gomez, Jr. and Felisa Duyan
Gomez on July 23, 1990. Said property is part of a 400-square meter lot registered in the name of the Gomez
spouses. In October 1991, he received a demand letter from Atty. Alexander del Prado (Atty. Del Prado), in
behalf of Purisima Nala (Nala), asking for the payment of rentals from 1987 to 1991 until he leaves the
premises, as said property is owned by Nala, failing which criminal and civil actions will be filed against him.
Another demand letter was sent on May 14, 1991. Because of such demands, respondent suffered damages
and was constrained to file the case against Nala and Atty. Del Prado.3
Atty. Del Prado claimed that he sent the demand letters in good faith and that he was merely acting in behalf of
his client, Nala, who disputed respondent's claim of ownership. Nala alleged that said property is part of an
800-square meter property owned by her late husband, Eulogio Duyan, which was subsequently divided into
two parts. The 400-square meter property was conveyed to spouses Gomez in a fictitious deed of sale, with
the agreement that it will be merely held by them in trust for the Duyan's children. Said property is covered by
Transfer Certificate of Title (TCT) No. 281115 in the name of spouses Gomez. Nala also claimed that
respondent is only renting the property which he occupies.4
After trial, the RTC of Quezon City, Branch 93, rendered its Decision on August 10, 1994, in favor of
respondent. The dispositive portion of the Decision provides:
WHEREFORE, premises considered, by preponderance of evidence, the Court finds in favor of the
plaintiff and hereby orders the defendants, jointly and severally, to pay plaintiff the following:

1. P150,000.00 by way of moral damages;

2. P30,000.00 by way of exemplary damages;
3. P20,000.00 as and for reasonable attorney's fees and other litigation expenses; and
4. to pay the costs.
SO ORDERED.5
Nala and Atty. Del Prado appealed to the CA. The herein assailed CA Decision dated December 19, 2002
affirmed the RTC Decision with modification, thus:
WHEREFORE, premises considered, the instant appeal is hereby DISMISSED. The assailed decision
of the Regional Trial Court, Branch 93, Quezon City, in Civil Case No. Q-91-10541 is heretofore
AFFIRMED with MODIFICATION. Defendants-appellants are ordered to pay, jointly and severally,
plaintiff-appellee the amount of P30,000.00 by way of moral damages. It is further ordered to pay him
exemplary damages in the amount of P10,000.00 and P10,000.00, attorney's fees.
SO ORDERED.6
In affirming the RTC Decision, the CA took note of the Decision dated September 5, 1994 rendered by the RTC
of Quezon City, Branch 80, dismissing Civil Case No. 91-8821, an action for reconveyance of real property and
cancellation of TCT No. 281115 with damages, filed by Nala against spouses Gomez.7
Hence, herein petition by the heirs of Nala (petitioners)8 with the following assignment of errors:
a) Respondent Court of Appeals erred in not considering the right of Purisima Nala to assert her rights
and interest over the property.
b) Respondent Court of Appeals erred in not considering the Decision rendered by the Court of Appeals
in the case for reconveyance which upheld the rights and interest of Purisima Nala and her children
over a certain parcel of land, a portion of which is subject of the present case.
c) Respondent Court of Appeals erred in awarding damages and attorney's fees without any basis.9
Atty. Del Prado filed a motion for extension of time to file his separate petition but it was denied by the Court
per its Resolution dated January 19, 2004 issued in G.R. No. 160829.
Petitioners argue that their predecessor-in-interest had every right to protect and assert her interests over the
property. Nala had no knowledge that the property was sold by spouses Gomez to respondent when the
demand letters were sent. What she was aware of was the fact that spouses Gomez were managing the
rentals on the property by virtue of the implied trust created between them and Eulogio Duyan. When spouses
Gomez failed to remit the rentals and claimed ownership of the property, it was then that Nala decided to
procure the services of legal counsel to protect their rights over the property.
Petitioners also contend that it was error for the CA to take note of the RTC Decision in Civil Case No. 91-8821
without further noting that the CA had already reversed and set aside said RTC Decision and ordered
reconveyance of the property to Nala and her children in a Decision dated March 8, 2000 rendered in CA-G.R.
CV No. 49163. Petitioners also argue that respondent did not substantiate his claim for damages.
Preliminarily, the Court notes that both the RTC and the CA failed to indicate the particular provision of law
under which it held petitioners liable for damages. Nevertheless, based on the allegations in respondent's
complaint, it may be gathered that the basis for his claim for damages is Article 19 of the Civil Code, which
provides:

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty and good faith.
The foregoing provision sets the standards which may be observed not only in the exercise of one's rights but
also in the performance of one's duties. When a right is exercised in a manner which does not conform with the
norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which
the wrongdoer must be held responsible. But a right, though by itself legal because recognized or granted by
law as such, may nevertheless become the source of some illegality. A person should be protected only when
he acts in the legitimate exercise of his right; that is, when he acts with prudence and in good faith, but not
when he acts with negligence or abuse. There is an abuse of right when it is exercised only for the purpose of
prejudicing or injuring another. The exercise of a right must be in accordance with the purpose for which it was
established, and must not be excessive or unduly harsh; there must be no intention to injure another.[10]
In order to be liable for damages under the abuse of rights principle, the following requisites must concur: (a)
the existence of a legal right or duty; (b) which is exercised in bad faith; and (c) for the sole intent of prejudicing
or injuring another.11
It should be stressed that malice or bad faith is at the core of Article 19 of the Civil Code. Good faith is
presumed, and he who alleges bad faith has the duty to prove the same.12 Bad faith, on the other hand, does
not simply connote bad judgment to simple negligence, dishonest purpose or some moral obloquy and
conscious doing of a wrong, or a breach of known duty due to some motives or interest or ill will that partakes
of the nature of fraud. Malice connotes ill will or spite and speaks not in response to duty. It implies an intention
to do ulterior and unjustifiable harm.13
In the present case, there is nothing on record which will prove that Nala and her counsel, Atty. Del Prado,
acted in bad faith or malice in sending the demand letters to respondent. In the first place, there was ground for
Nala's actions since she believed that the property was owned by her husband Eulogio Duyan and that
respondent was illegally occupying the same. She had no knowledge that spouses Gomez violated the trust
imposed on them by Eulogio and surreptitiously sold a portion of the property to respondent. It was only after
respondent filed the case for damages against Nala that she learned of such sale. The bare fact that
respondent claims ownership over the property does not give rise to the conclusion that the sending of the
demand letters by Nala was done in bad faith. Absent any evidence presented by respondent, bad faith or
malice could not be attributed to petitioner since Nala was only trying to protect their interests over the
property.
Moreover, respondent failed to show that Nala and Atty. Del Prado's acts were done with the sole intention of
prejudicing and injuring him. It may be true that respondent suffered mental anguish, serious anxiety and
sleepless nights when he received the demand letters; however, there is a material distinction between
damages and injury. Injury is the legal invasion of a legal right while damage is the hurt, loss or harm which
results from the injury.14 Thus, there can be damage without injury in those instances in which the loss or harm
was not the result of a violation of a legal duty. In such cases, the consequences must be borne by the injured
person alone; the law affords no remedy for damages resulting from an act which does not amount to a legal
injury or wrong. These situations are often called damnum absque injuria.15
Nala was acting well within her rights when she instructed Atty. Del Prado to send the demand letters. She had
to take all the necessary legal steps to enforce her legal/equitable rights over the property occupied by
respondent. One who makes use of his own legal right does no injury.16 Thus, whatever damages are suffered
by respondent should be borne solely by him.
Nala's acts in protecting her rights over the property find further solid ground in the fact that the property has
already been ordered reconveyed to her and her heirs. In its Decision dated March 8, 2000 in CA-G.R. CV No.
49163, the CA reversed and set aside the RTC's Decision and ordered the reconveyance of the property to
petitioners, and TCT No. 281115 was declared canceled. Said CA Decision was affirmed by this Court in its
Decision dated March 18, 2005 in G.R. No. 144148, which became final and executory on July 27, 2005.

WHEREFORE, the petition is GRANTED. The Decision dated December 19, 2002 and Resolution dated
October 28, 2003 rendered by the Court of Appeals in CA-G.R. CV No. 48580 are NULLIFIED. Civil Case No.
Q-91-10541 is DISMISSED for lack of merit.
Costs against respondent.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice

WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
MINITA V. CHICO-NAZARIO
Associate Justice
*

RUBEN T. REYES
Associate Justice

ARTURO D. BRION
Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court's Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

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

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 151866

September 9, 2004

SOLEDAD CARPIO, petitioner,

vs.
LEONORA A. VALMONTE, respondent.
DECISION
TINGA, J.:
Assailed in the instant petition for review is the Decision of the Court of Appeals in C.A.-G.R. CV No.
69537,1promulgated on 17 January 2002.2 The appellate court reversed the trial courts decision denying
respondents claim for damages against petitioner and ordered the latter to pay moral damages to the former in
the amount ofP100,000.00.
Respondent Leonora Valmonte is a wedding coordinator. Michelle del Rosario and Jon Sierra engaged her
services for their church wedding on 10 October 1996. At about 4:30 p.m. on that day, Valmonte went to the
Manila Hotel where the bride and her family were billeted. When she arrived at Suite 326-A, several persons
were already there including the bride, the brides parents and relatives, the make-up artist and his assistant,
the official photographers, and the fashion designer. Among those present was petitioner Soledad Carpio, an
aunt of the bride who was preparing to dress up for the occasion.
After reporting to the bride, Valmonte went out of the suite carrying the items needed for the wedding rites and
the gifts from the principal sponsors. She proceeded to the Maynila Restaurant where the reception was to be
held. She paid the suppliers, gave the meal allowance to the band, and went back to the suite. Upon entering
the suite, Valmonte noticed the people staring at her. It was at this juncture that petitioner allegedly uttered the
following words to Valmonte: "Ikaw lang ang lumabas ng kwarto, nasaan ang dala mong bag? Saan ka
pumunta? Ikaw lang and lumabas ng kwarto, ikaw ang kumuha." Petitioner then ordered one of the ladies to
search Valmontes bag. It turned out that after Valmonte left the room to attend to her duties, petitioner
discovered that the pieces of jewelry which she placed inside the comfort room in a paper bag were lost. The
jewelry pieces consist of two (2) diamond rings, one (1) set of diamond earrings, bracelet and necklace with a
total value of about one million pesos. The hotel security was called in to help in the search. The bags and
personal belongings of all the people inside the room were searched. Valmonte was allegedly bodily searched,

interrogated and trailed by a security guard throughout the evening. Later, police officers arrived and
interviewed all persons who had access to the suite and fingerprinted them including Valmonte. During all the
time Valmonte was being interrogated by the police officers, petitioner kept on saying the words "Siya lang ang
lumabas ng kwarto." Valmontes car which was parked at the hotel premises was also searched but the search
yielded nothing.
A few days after the incident, petitioner received a letter from Valmonte demanding a formal letter of apology
which she wanted to be circulated to the newlyweds relatives and guests to redeem her smeared reputation as
a result of petitioners imputations against her. Petitioner did not respond to the letter. Thus, on 20 February
1997, Valmonte filed a suit for damages against her before the Regional Trial Court (RTC) of Pasig City,
Branch 268. In her complaint, Valmonte prayed that petitioner be ordered to pay actual, moral and exemplary
damages, as well as attorneys fees.
Responding to the complaint, petitioner denied having uttered words or done any act to confront or single out
Valmonte during the investigation and claimed that everything that transpired after the theft incident was purely
a police matter in which she had no participation. Petitioner prayed for the dismissal of the complaint and for
the court to adjudge Valmonte liable on her counterclaim.
The trial court rendered its Decision on 21 August 2000, dismissing Valmontes complaint for damages. It ruled
that when petitioner sought investigation for the loss of her jewelry, she was merely exercising her right and if
damage results from a person exercising his legal right, it is damnum absque injuria. It added that no proof was
presented by Valmonte to show that petitioner acted maliciously and in bad faith in pointing to her as the
culprit. The court said that Valmonte failed to show that she suffered serious anxiety, moral shock, social
humiliation, or that her reputation was besmirched due to petitioners wrongful act.
Respondent appealed to the Court of Appeals alleging that the trial court erred in finding that petitioner did not
slander her good name and reputation and in disregarding the evidence she presented.
The Court of Appeals ruled differently. It opined that Valmonte has clearly established that she was singled out
by petitioner as the one responsible for the loss of her jewelry. It cited the testimony of Serena Manding,
corroborating Valmontes claim that petitioner confronted her and uttered words to the effect that she was the
only one who went out of the room and that she was the one who took the jewelry. The appellate court held
that Valmontes claim for damages is not predicated on the fact that she was subjected to body search and
interrogation by the police but rather petitioners act of publicly accusing her of taking the missing jewelry. It
categorized petitioners utterance defamatory considering that it imputed upon Valmonte the crime of theft. The
court concluded that petitioners verbal assault upon Valmonte was done with malice and in bad faith since it
was made in the presence of many people without any solid proof except petitioners suspicion. Such
unfounded accusation entitles Valmonte to an award of moral damages in the amount of P100,000.00 for she
was publicly humiliated, deeply insulted, and embarrassed. However, the court found no sufficient evidence to
justify the award of actual damages.
Hence, this petition.
Petitioner contends that the appellate courts conclusion that she publicly humiliated respondent does not
conform to the evidence presented. She adds that even on the assumption that she uttered the words
complained of, it was not shown that she did so with malice and in bad faith.
In essence, petitioner would want this Court to review the factual conclusions reached by the appellate court.
The cardinal rule adhered to in this jurisdiction is that a petition for review must raise only questions of
law,3 and judicial review under Rule 45 does not extend to an evaluation of the sufficiency of evidence unless
there is a showing that the findings complained of are totally devoid of support in the record or that they are so
glaringly erroneous as to constitute serious abuse of discretion.4 This Court, while not a trier of facts, may

review the evidence in order to arrive at the correct factual conclusion based on the record especially so when
the findings of fact of the Court of Appeals are at variance with those of the trial court, or when the inference
drawn by the Court of Appeals from the facts is manifestly mistaken.5
Contrary to the trial courts finding, we find sufficient evidence on record tending to prove that petitioners
imputations against respondent was made with malice and in bad faith.
Petitioners testimony was shorn of substance and consists mainly of denials. She claimed not to have uttered
the words imputing the crime of theft to respondent or to have mentioned the latters name to the authorities as
the one responsible for the loss of her jewelry. Well-settled is the rule that denials, if unsubstantiated by clear
and convincing evidence, are negative and self-serving which merit no weight in law and cannot be given
greater evidentiary value over the testimony of credible witnesses who testify on affirmative matters.6
Respondent, however, has successfully refuted petitioners testimony. Quite credibly, she has narrated in great
detail her distressing experience on that fateful day. She testified as to how rudely she was treated by
petitioner right after she returned to the room. Petitioner immediately confronted her and uttered the words
"Ikaw lang ang lumabas ng kwarto. Nasaan ang dala mong bag? Saan ka pumunta? Ikaw ang kumuha."
Thereafter, her body was searched including her bag and her car. Worse, during the reception, she was once
more asked by the hotel security to go to the ladies room and she was again bodily searched.7
Serea Manding, a make-up artist, corroborated respondents testimony. She testified that petitioner
confronted respondent in the presence of all the people inside the suite accusing her of being the only one who
went out of the comfort room before the loss of the jewelry. Manding added that respondent was embarrassed
because everybody else in the room thought she was a thief.8 If only to debunk petitioners assertion that she
did not utter the accusatory remarks in question publicly and with malice, Mandings testimony on the point
deserves to be reproduced. Thus,
Q After that what did she do?
A Then Leo came out from the other room she said, she is (sic) the one I only saw from the comfort
room.
Q Now, what exact word (sic) were said by Mrs. Carpio on that matter?
A She said "siya lang yung nakita kong galing sa C.R."
Q And who was Mrs. Carpio or the defendant referring to?
A Leo Valmonte.
Q Did she say anything else, the defendant?
A Her jewelry were lost and Leo was the only one she saw in the C.R. After that she get (sic) the paper
bag then the jewelry were already gone.
Q Did she confront the plaintiff Mrs. Valmonte regarding that fact?
A Yes.
Q What did the defendant Mrs. Carpio tell the plaintiff, Mrs. Valmonte?
A "Ikaw yung nakita ko sa C.R. nawawala yung alahas ko."

Q When the defendant Mrs. Carpio said that to plaintiff Mrs. Valmonte were there other people inside
the room?
A Yes, sir.
Q Were they able to hear what Mrs. Carpio said to Mrs. Valmonte?
A Yes, sir.
Q What was your thinking at that time that Mrs. Carpio said that to Mrs. Valmonte?
A "Nakakahiya kasi akala ng iba doon na talagang magnanakaw siya. Kasi marami na kaming
nandodoon, dumating na yung couturier pati yung video man and we sir.
Q Who was the person you [were] alleging "na nakakahiya" whose (sic) being accused or being
somebody who stole those item of jewelry?
A "Nakakahiya para kay Leo kasi pinagbibintangan siya. Sa dami namin doon siya yung
napagbintangan."
Q And who is Leo, what is her full name?
A Leo Valmonte.
Q Did the defendant tell this matter to other people inside the room?
A Yes, the mother of the bride.
Q And who else did she talk to?
A The father of the bride also.
Q And what did the defendant tell the mother regarding this matter?
A "Nawawala yung alahas ko." Sabi naman nung mother baka naman hindi mo dala tignan mo munang
mabuti.
Q Who was that other person that she talked to?
A Father of the bride.9
Significantly, petitioners counsel elected not to pursue her cross-examination of the witness on this point
following her terse and firm declaration that she remembered petitioners exact defamatory words in answer to
the counsels question.10
Jaime Papio, Security Supervisor at Manila Hotel, likewise contradicted petitioners allegation that she did not
suspect or mention the name of respondent as her suspect in the loss of the jewelry.11
To warrant recovery of damages, there must be both a right of action, for a wrong inflicted by the defendant,
and the damage resulting therefrom to the plaintiff. Wrong without damage, or damage without wrong, does not
constitute a cause of action.12

In the sphere of our law on human relations, the victim of a wrongful act or omission, whether done willfully or
negligently, is not left without any remedy or recourse to obtain relief for the damage or injury he sustained.
Incorporated into our civil law are not only principles of equity but also universal moral precepts which are
designed to indicate certain norms that spring from the fountain of good conscience and which are meant to
serve as guides for human conduct.13 First of these fundamental precepts is the principle commonly known as
"abuse of rights" under Article 19 of the Civil Code. It provides that "Every person must, in the exercise of his
rights and in the performance of his duties, act with justice, give everyone his due and observe honesty and
good faith." To find the existence of an abuse of right, the following elements must be present: (1) there is a
legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent or prejudicing or injuring
another.14 When a right is exercised in a manner which discards these norms resulting in damage to another, a
legal wrong is committed for which the actor can be held accountable.15 One is not allowed to exercise his right
in a manner which would cause unnecessary prejudice to another or if he would thereby offend morals or good
customs. Thus, a person should be protected only when he acts in the legitimate exercise of his right, that is
when he acts with prudence and good faith; but not when he acts with negligence or abuse.16
Complementing the principle of abuse of rights are the provisions of Articles 20 and 21 of the Civil Code which
read, thus:
Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall
indemnify the latter for the same.
Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals
or good customs or public policy shall compensate the latter for the damage.
The foregoing rules provide the legal bedrock for the award of damages to a party who suffers damage
whenever one commits an act in violation of some legal provision, or an act which though not
constituting a transgression of positive law, nevertheless violates certain rudimentary rights of the party
aggrieved.
In the case at bar, petitioners verbal reproach against respondent was certainly uncalled for considering that
by her own account nobody knew that she brought such kind and amount of jewelry inside the paper
bag.17 This being the case, she had no right to attack respondent with her innuendos which were not merely
inquisitive but outrightly accusatory. By openly accusing respondent as the only person who went out of the
room before the loss of the jewelry in the presence of all the guests therein, and ordering that she be
immediately bodily searched, petitioner virtually branded respondent as the thief. True, petitioner had the right
to ascertain the identity of the malefactor, but to malign respondent without an iota of proof that she was the
one who actually stole the jewelry is an act which, by any standard or principle of law is impermissible.
Petitioner had willfully caused injury to respondent in a manner which is contrary to morals and good customs.
Her firmness and resolve to find her missing jewelry cannot justify her acts toward respondent. She did not act
with justice and good faith for apparently, she had no other purpose in mind but to prejudice respondent.
Certainly, petitioner transgressed the provisions of Article 19 in relation to Article 21 for which she should be
held accountable.
Owing to the rule that great weight and even finality is given to factual conclusions of the Court of Appeals
which affirm those of the trial court,18 we sustain the findings of the trial court and the appellate court that
respondents claim for actual damages has not been substantiated with satisfactory evidence during the trial
and must therefore be denied. To be recoverable, actual damages must be duly proved with reasonable
degree of certainty and the courts cannot rely on speculation, conjecture or guesswork.19
Respondent, however, is clearly entitled to an award of moral damages. Moral damages may be awarded
whenever the defendants wrongful act or omission is the proximate cause of the plaintiffs physical suffering,
mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social

humiliation, and similar injury20 in the cases specified or analogous to those provided in Article 2219 of the Civil
Code.21Though no proof of pecuniary loss is necessary in order that moral damages may be adjudicated,
courts are mandated to take into account all the circumstances obtaining in the case and assess damages
according to their discretion.22 Worthy of note is that moral damages are not awarded to penalize the
defendant,23 or to enrich a complainant, but to enable the latter to obtain means, diversions or amusements
that will serve to alleviate the moral suffering he has undergone, by reason of defendants culpable action. In
any case, award of moral damages must be proportionate to the sufferings inflicted.24
Based on the foregoing jurisprudential pronouncements, we rule that the appellate court did not err in awarding
moral damages. Considering respondents social standing, and the fact that her profession is based primarily
on trust reposed in her by her clients, the seriousness of the imputations made by petitioner has greatly
tarnished her reputation and will in one way or the other, affect her future dealings with her clients, the award
ofP100,000.00 as moral damages appears to be a fair and reasonable assessment of respondents damages.
WHEREFORE, the instant Petition is DENIED. Costs against petitioner.
SO ORDERED.
Puno, Austria-Martinez*, Callejo, Sr., and Chico-Nazario, JJ., concur.