NOCUM ET AL vs.

TAN (470 SCRA 639)

ARMAND NOCUM and G.R. No. 145022

THE PHILIPPINE DAILY
INQUIRER, INC., Present:
P e t i t i o n e r s,
PUNO,
Chairman,
AUSTRIA-MARTINEZ,
CALLEJO, SR.
- versus - TINGA, and
CHICO-NAZARIO, JJ .

Promulgated:
LUCIO TAN,
R e s p o n d e n t. September 23, 2005
X--------------------------------------------------X

DECISION

CHICO-NAZARIO, J .:

Assailed in a Petition for Review on Certiorari under Rule 45 of the 1997

Rules of Civil Procedure are the decision [1] of the Court of Appeals dated
19 April 2000 that affirmed the order of the Regional Trial Court (RTC) of
Makati City, Branch 56, in Civil Case No. 98-2288, dated 19 April 1999,
admitting respondent Lucio Tan's Amended Complaint for Damages for the
alleged malicious and defamatory imputations against him in two (2)
articles of the Philippine Daily Inquirer, and its Resolution [2] dated 15
September 2000 denying petitioners Armand Nocum and The Philippine
Daily Inquirer, Inc.s' motion for reconsideration.

The antecedents are summarized by the Court of Appeals.

On September 27, 1998, Lucio Tan filed a complaint against reporter
Armand Nocum, Capt. Florendo Umali, ALPAP and Inquirer with the
Regional Trial Court of Makati, docketed as Civil Case No. 98-2288,seeking
moral and exemplary damages for the alleged malicious and defamatory
imputations contained in a news article.

INQUIRER and NOCUM filed their joint answer, dated October 27, 1998,
wherein they alleged that: (1) the complaint failed to state a cause of
action; (2) the defamatory statements alleged in the complaint were
general conclusions without factual premises; (3) the questioned news
report constituted fair and true report on the matters of public interest
concerning a public figure and therefore, was privileged in nature; and (4)
malice on their part was negated by the publication in the same article of
plaintiff's or PAL's side of the dispute with the pilot's union.

ALPAP and UMALI likewise filed their joint answer, dated October 31, 1998,
and alleged therein that: (1) the complaint stated no cause of action; (2)
venue was improperly laid; and (3) plaintiff Lucio Tan was not a real party
in interest. It appeared that the complaint failed to state the residence of the
complainant at the time of the alleged commission of the offense and the
place where the libelous article was printed and first published.

Thus, the Regional Trial Court of Makati issued an Order dated February
10, 1999, dismissing the complaint without prejudice on the ground of
improper venue.

Aggrieved by the dismissal of the complaint, respondent Lucio Tan filed an

Omnibus Motion dated February 24, 1999, seeking reconsideration of the
dismissal and admission of the amended complaint. In par. 2.01.1 of the
amended complaint, it is alleged that 'This article was printed and first
published in the City of Makati(p. 53, Rollo, CA-G.R. SP No. 55192), and in
par. 2.04.1, that 'This caricature was printed and first published in the City
of Makati (p. 55, id.).
The lower court, after having the case dismissed for improper venue,
admitted the amended complaint and deemed set aside the previous order
of dismissal, supra, stating, inter alia, that:
The mistake or deficiency in the original complaint appears now to have
been cured in the Amended Complaint which can still be properly admitted,
pursuant to Rule 10 of the 1997 Rules of Civil Procedure, inasmuch as the
Order of dismissal is not yet final. Besides, there is no substantial
amendment in the Amended Complaint which would affect the defendants'
defenses and their Answers. The Amendment is merely formal, contrary to
the contention of the defendants that it is substantial.

Dissatisfied, petitioners, together with defendants Capt. Florendo Umali

and the Airline Pilots Association of the Philippines, Inc. (ALPAP), appealed
the RTC decision to the Court of Appeals. Two petitions for certiorari were
filed, one filed by petitioners which was docketed as CA-G.R. SP No.
55192, and the other by defendants Umali and ALPAP which was docketed
as CA-G.R. SP No. 54894. The two petitions were consolidated.

On 19 April 2000, the Court of Appeals rendered its decision the dispositive
portion of which reads:

WHEREFORE, premises considered, the petition is hereby DENIED DUE

COURSE and DISMISSED for lack of merit. The Order of the court a quo is
hereby AFFIRMED.

The motions for reconsideration filed by petitioners and by defendants

Umali and ALPAP were likewise denied in a resolution dated 15 September
2000.

Both petitioners and defendants Umali and ALPAP appealed to this Court.
Under consideration is the petition for review filed by petitioners.

On 11 December 2000, the Court required respondent Tan to comment on

the petition filed by petitioners. [3]
Respondent filed his comment on 22 January 2001 [4] to which petitioners
filed a reply on 26 April 2001. [5]

In a Manifestation filed on 19 February 2001, respondent stated that the

petition [6] filed by defendants Umali and ALPAP has already been denied
by the Court in a resolution dated 17 January 2001. [7]

On 20 August 2003, the Court resolved to give due course to the petition
and required the parties to submit their respective memoranda within thirty
(30) days from notice. [8] Both petitioners and respondent complied. [9]

Petitioners assigned the following as errors:

A. THE COURT OF APPEALS ERRED IN RULING (1) THAT THE

LOWER COURT HAD JURISDICTION OVER THE CASE (ON THE BASIS
OF THE ORIGINAL COMPLAINT) NOTWITHSTANDING THE FACT THAT
THE LOWER COURT HAD EARLIER DISMISSED THE ORIGINAL
COMPLAINT FOR ITS FAILURE TO CONFER JURISDICTION UPON
THJE COURT; AND (2) THAT THE AMENDED COMPLAINT WAS
PROPERLY ALLOWED OR ADMITTED BECAUSE THE LOWER COURT
WAS 'NEVER DIVESTED OF JURISDICTION OVER THE CASE;

B. THE COURT OF APPEALS ERRED IN NOT RULING THAT THE

ORIGINAL COMPLAINT OF RESPONDENT WAS AMENDED
PURPOSELY TO CONFER UPON THE LOWER COURT JURISDICTION
OVER THE CASE. [10]

Petitioners state that Article 360 of the Revised Penal Code vests
jurisdiction over all civil and criminal complaints for libel on the RTC of the
place: (1) where the libelous article was printed and first published; or (2)
where the complainant, if a private person, resides; or (3) where the
complainant, if a public official, holds office. They argue that since the
original complaint only contained the office address of respondent and not
the latter's actual residence or the place where the allegedly offending
news reports were printed and first published, the original complaint, by
reason of the deficiencies in its allegations, failed to confer jurisdiction on
the lower court.

The question to be resolved is: Did the lower court acquire jurisdiction over
the civil case upon the filing of the original complaint for damages?

We rule in the affirmative.

It is settled that jurisdiction is conferred by law based on the facts alleged in

the complaint since the latter comprises a concise statement of the ultimate
facts constituting the plaintiff's causes of action. [11] In the case at bar, after
examining the original complaint, we find that the RTC acquired jurisdiction
over the case when the case was filed before it. From the allegations
thereof, respondent's cause of action is for damages arising from libel, the
jurisdiction of which is vested with the RTC. Article 360 of the Revised
Penal Code provides that it is a Court of First Instance [12]that is
specifically designated to try a libel case. [13]

Petitioners are confusing jurisdiction with venue. A former colleague, the

Hon. Florenz D. Regalado,[14] differentiated jurisdiction and venue as
follows: (a) Jurisdiction is the authority to hear and determine a case;
venue is the place where the case is to be heard or tried; (b) Jurisdiction is
a matter of substantive law; venue, of procedural law; (c) Jurisdiction
establishes a relation between the court and the subject matter; venue, a
relation between plaintiff and defendant, or petitioner and respondent; and,
(d) Jurisdiction is fixed by law and cannot be conferred by the parties;
venue may be conferred by the act or agreement of the parties.

In the case at bar, the additional allegations in the Amended Complaint that
the article and the caricature were printed and first published in the City
of Makati referred only to the question of venue and not jurisdiction. These
additional allegations would neither confer jurisdiction on the RTC nor
would respondent's failure to include the same in the original complaint
divest the lower court of its jurisdiction over the case. Respondent's failure
to allege these allegations gave the lower court the power, upon motion by
a party, to dismiss the complaint on the ground that venue was not properly
laid.
In Laquian v. Baltazar, [15] this Court construed the term 'jurisdiction in
Article 360 of the Revised Penal Code as referring to the place where
actions for libel shall be filed or venue.

In Escribano v. Avila, [16] pursuant to Republic Act No. 4363, [17] we laid
down the following rules on the venue of the criminal and civil actions in
written defamations.

1. General rule: The action may be filed in the Court of First Instance of the
province or city where the libelous article is printed and first published or
where any of the offended parties actually resides at the time of the
commission of the offense.

2. If the offended party is a public officer with office in Manila at the time the
offense was committed, the venue is Manila or the city or province where
the libelous article is printed and first published.

3. Where an offended party is a public official with office outside of Manila,

the venue is the province or the city where he held office at the time of the
commission of the offense or where the libelous article is printed and first
published.

4. If an offended party is a private person, the venue is his place of

residence at the time of the commission of the offense or where the
libelous article is printed and first published.

The common feature of the foregoing rules is that whether the offended
party is a public officer or a private person, he has always the option to file
the action in the Court of First Instance of the province or city where the
libelous article is printed or first published.

We further restated [18] the rules on venue in Article 360 as follows:

1. Whether the offended party is a public official or a private person, the
criminal action may be filed in the Court of First Instance of the province or
city where the libelous article is printed and first published.

2. If the offended party is a private individual, the criminal action may also
be filed in the Court of First Instance of the province where he actually
resided at the time of the commission of the offense.

3. If the offended party is a public officer whose office is in Manila at the

time of the commission of the offense, the action may be filed in the Court
of First Instance of Manila.

4. If the offended party is a public officer holding office outside of Manila,

the action may be filed in the Court of First Instance of the province or city
where he held office at the time of the commission of the offense.

We fully agree with the Court of Appeals when it ruled:

We note that the amended complaint or amendment to the complaint was

not intended to vest jurisdiction to the lower court, where originally it had
none. The amendment was merely to establish the proper venue for the
action. It is a well-established rule that venue has nothing to do with
jurisdiction, except in criminal actions. Assuming that venue were properly
laid in the court where the action was instituted, that would be procedural,
not a jurisdictional impediment. In fact, in civil cases, venue may be waived.

Consequently, by dismissing the case on the ground of improper venue, the

lower court had jurisdiction over the case. Apparently, the herein petitioners
recognized this jurisdiction by filing their answers to the
complaint, albeit, questioning the propriety of venue, instead of a motion to
dismiss.

...
We so hold that dismissal of the complaint by the lower court was proper
considering that the complaint, indeed, on its face, failed to allege neither
the residence of the complainant nor the place where the libelous article
was printed and first published. Nevertheless, before the finality of the
dismissal, the same may still be amended as in fact the amended
complaint was admitted, in view of the court a quo's jurisdiction, of which it
was never divested. In so doing, the court acted properly and without any
grave abuse of discretion. [19]

It is elementary that objections to venue in CIVIL ACTIONS arising from

libel may be waived since they do not involve a question of jurisdiction. The
laying of venue is procedural rather than substantive, relating as it does to
jurisdiction of the court over the person rather than the subject matter.
Venue relates to trial and not to jurisdiction. [20] It is a procedural, not a
jurisdictional, matter. It relates to the place of trial or geographical location
in which an action or proceeding should be brought and not to the
jurisdiction of the court. [21] It is meant to provide convenience to the
parties, rather than restrict their access to the courts as it relates to the
place of trial. [22]In contrast, in criminal actions, it is fundamental that
venue is jurisdictional it being an essential element of jurisdiction. [23]

Petitioners' argument that the lower court has no jurisdiction over the case
because respondent failed to allege the place where the libelous articles
were printed and first published would have been tenable if the case filed
were a criminal case. The failure of the original complaint to contain such
information would be fatal because this fact involves the issue of venue
which goes into the territorial jurisdiction of the court. This is not to be
because the case before us is a civil action where venue is not
jurisdictional.

The cases [24] cited by petitioners are not applicable here. These cases
involve amendments on complaints that confer jurisdiction on courts over
which they originally had none. This is not true in the case at bar. As
discussed above, the RTC acquired jurisdiction over the subject matter
upon the filing of the original complaint. It did not lose jurisdiction over the
same when it dismissed it on the ground of improper venue. The
amendment merely laid down the proper venue of the case.

WHEREFORE, the foregoing considered, the decision of the Court of

Appeals dated 19 April 2000 is AFFIRMED in toto. No costs.

RUDOLF LIETS HOLDINGS vs. REGISTRY OF DEEDS (344 SCRA 684)

[G.R. No. 133240. November 15, 2000]
RUDOLF LIETZ HOLDINGS, INC., petitioner, vs. THE REGISTRY OF
DEEDS OF PARAAQUE CITY, respondent.
DECISION
YNARES-SANTIAGO, J.:
The instant petition for review is filed on a pure question of law arising from
the Decision rendered by the Regional Trial Court of Paraaque City, Metro
Manila, Branch 257, in LRC Case No. 97-0170.
Petitioner corporation was formerly known as Rudolf Lietz,
Incorporated. On July 15, 1996, it amended its Articles of Incorporation to
change its name to Rudolf Lietz Holdings, Inc. The Amended Articles of
Incorporation was approved by the Securities and Exchange Commission
on February 20, 1997.[1]
As a consequence of its change of name, petitioner sought the amendment
of the transfer certificates of title over real properties owned by the said
corporation, all of which were under the old name, Rudolf Lietz,
Incorporated. For this purpose, petitioner instituted, on November 20, 1997,
a petition for amendment of titles with the Regional Trial Court of Paraaque
City, docketed as LRC Case No. 97-0170.[2]
The petition impleaded as respondent the Registry of Deeds of Pasay City,
apparently because the titles sought to be amended, namely, Transfer
Certificates of Title Nos. 99446, 99447, 99448, 102486, 102487, 102488
and 102489,[3] all state that they were issued by the Registry of Deeds of
Pasay City. Petitioner likewise inadvertently alleged in the body of the
petition that the lands covered by the subject titles are located in Pasay
City.
Subsequently, petitioner learned that the subject titles are in the custody of
the Register of Deeds of Paraaque City.[4] Hence, on February 16, 1998,
petitioner filed an Ex-Parte Motion to Admit Amended Petition. [5] In the
attached Amended Petition,[6] petitioner impleaded instead as respondent
the Registry of Deeds of Paraaque City, and alleged that its lands are
located in Paraaque City.
In the meantime, however, on January 30, 1998, the court a quo had
dismissed the petition motu proprio on the ground of improper venue, it
appearing therein that the respondent is the Registry of Deeds of Pasay
City and the properties are located in Pasay City.[7]
Before counsel for petitioner could receive an official copy of the aforesaid
order of dismissal, he filed with the lower court a Motion for
Reconsideration.[8] On February 20, 1998, in view of the dismissal of the
petition, the lower court denied the Ex-Parte Motion to Admit Amended
Petition.[9] On March 30, 1998, the lower court denied the Motion for
Reconsideration.[10]
Petitioner, thus, is before this Court arguing that
The court a quo acted contrary to the rules and jurisprudence on the matter
for the following reasons:
1. It has no power to immediately dismiss an initiatory pleading for improper
venue;
2. Assuming the Order of 30 January 1998 was proper, it was nevertheless
still a matter of right on petitioners part to amend its petition in order to
correct the wrong entries therein; and
3. The unassailable reality is that the subject parcels of land are located in
Paraaque City, so venue was properly laid despite that erroneous
allegation in the original petition.[11]
The Solicitor General filed on November 4, 1998 his Comment. [12] He
contends that the trial court did not acquire jurisdiction over
the res because it appeared from the original petition that the lands are
situated in Pasay City; hence, outside the jurisdiction of the Paraaque
court. Since it had no jurisdiction over the case, it could not have acted on
the motion to admit amended petition.
On February 15, 1999, petitioner filed its Reply.[13] It discussed the
distinction between jurisdiction and venue, and maintained that the trial
court had jurisdiction over the petition, but that venue appeared to be
improperly laid based on the erroneous allegation therein on the location of
the properties.
The issue involved herein is simple. May the trial court motu
proprio dismiss a complaint on the ground of improper venue? This
question has already been answered in Dacoycoy v. Intermediate Appellate
Court,[14] where this Court held that it may not.
While the ground invoked by the trial court in dismissing the petition below
was clearly that of improper venue, [15] the Solicitor General confuses venue
with jurisdiction.A distinction between the two must be drawn. Jurisdiction
over the subject matter or nature of an action is conferred only by law. [16] It
may not be conferred by consent or waiver upon a court which otherwise
would have no jurisdiction over the subject matter of an action. On the
other hand, the venue of an action as fixed by statute may be changed by
the consent of the parties, and an objection on improper venue may be
waived by the failure of the defendant to raise it at the proper time. In such
an event, the court may still render a valid judgment. Rules as to
jurisdiction can never be left to the consent or agreement of the
parties. Venue is procedural, not jurisdictional, and hence may be waived. It
is meant to provide convenience to the parties, rather than restrict their
access to the courts as it relates to the place of trial. [17]
In Dacoycoy v. IAC, this Court ruled:
The motu proprio dismissal of petitioners complaint by respondent trial
court on the ground of improper venue is plain error, obviously attributable
to its inability to distinguish between jurisdiction and venue.
Questions or issues relating to venue of actions are basically governed by
Rule 4 of the Revised Rules of Court. It is said that the laying of venue is
procedural rather than substantive. It relates to the jurisdiction of the court
over the person rather than the subject matter. Provisions relating to venue
establish a relation between the plaintiff and the defendant and not
between the court and the subject matter. Venue relates to trial not to
jurisdiction, touches more of the convenience of the parties rather than the
substance of the case.
xxx xxx xxx.
Dismissing the complaint on the ground of improper venue is certainly not
the appropriate course of action at this stage of the proceedings,
particularly as venue, in inferior courts as well as in the courts of first
instance (now RTC), may be waived expressly or impliedly. Where the
defendant fails to challenge timely the venue in a motion to dismiss as
provided by Section 4 of Rule 4 of the Rules of Court, and allows the trial to
be held and a decision to be rendered, he cannot on appeal or in a special
action be permitted to belatedly challenge the wrong venue, which is
deemed waived.
Thus, unless and until the defendant objects to the venue in a motion to
dismiss, the venue cannot be truly said to have been improperly laid, as for
all practical intents and purposes, the venue, though technically wrong,
may be acceptable to the parties for whose convenience the rules on
venue had been devised. The trial court cannot pre-empt the defendants
prerogative to object to the improper laying of the venue by motu
proprio dismissing the case.
Indeed, it was grossly erroneous for the trial court to have taken a
procedural short-cut by dismissing motu proprio the complaint on the
ground of improper venue without first allowing the procedure outlined in
the rules of court to take its proper course. Although we are for the speedy
and expeditious resolution of cases, justice and fairness take primary
importance. The ends of justice require that respondent trial court faithfully
adhere to the rules of procedure to afford not only the defendant, but the
plaintiff as well, the right to be heard on his cause. [18]
Rule 9, Section 1 of the 1997 Rules of Civil Procedure states that defenses
and objections not pleaded either in a motion to dismiss or in the answer
are deemed waived. The court may only dismiss an action motu proprio in
case of lack of jurisdiction over the subject matter, litis pendentia, res
judicata and prescription. Therefore, the trial court in this case erred when it
dismissed the petition motu proprio. It should have waited for a motion to
dismiss or a responsive pleading from respondent, raising the objection or
affirmative defense of improper venue, before dismissing the
petition. However, this was overtaken by petitioners motion for leave to
amend its petition.
Petitioner correctly invoked the jurisdiction of the Regional Trial Court in
seeking the amendment of its certificates of title. The jurisdiction of the
Regional Trial Court over matters involving the registration of lands and
lands registered under the Torrens system is conferred by Section 2 of
Presidential Decree No. 1529, The Property Registration Decree, viz:
Nature of registration proceedings; jurisdiction of courts. --- Judicial
proceedings for the registration of lands throughout the Philippines shall
be in rem and shall be based on the generally accepted principles
underlying the Torrens system.
Courts of First Instance (now Regional Trial Courts) shall have exclusive
jurisdiction over all applications for original registration of title to lands,
including improvements and interest therein, and over all petitions filed
after original registration of title, with power to hear and determine all
questions arising upon such applications or petitions.The court through its
clerk of court shall furnish the Land Registration Commission with two
certified copies of all pleadings, exhibits, orders, and decisions filed or
issued in applications or petitions for land registration, with the exception of
stenographic notes, within five days from the filing or issuance thereof.
More specifically, jurisdiction over petitions for amendments of certificates
of title, such as the one brought below, is provided for by Section 108 of
P.D. 1529, thus:
Amendment and alteration of certificates. --- No erasure, alteration, or
amendment shall be made upon the registration book after the entry of a
certificate of title or of a memorandum thereon and the attestation of the
same by the Register of Deeds, except upon order of the proper Court of
First Instance (now Regional Trial Court). A registered owner or other
person having an interest in registered property, or, in proper cases, the
Register of Deeds with the approval of the Commissioner of Land
Registration, may apply by petition to the court upon the ground that the
registered interests of any description, whether vested, contingent,
expectant inchoate appearing on the certificate, have terminated and
ceased; or that new interest not appearing upon the certificate have arisen
or been created; or that an omission or error was made in entering a
certificate or any memorandum thereon, or on any duplicate certificate;
or that the name of any person on the certificate has been changed; or that
the registered owner has married, or, if registered as married, that the
marriage has been terminated and no right or interest of heirs or creditors
will thereby be affected, or that a corporation which owned registered land
and has been dissolved has not conveyed the same within three years after
its dissolution; or upon any other reasonable ground and the court may
hear and determine the petition after notice to all parties in interest, and
may order the entry or cancellation of a new certificate, or grant any other
relief upon such terms and conditions, requiring security or bond if
necessary, as it may consider proper: xxx. (Emphasis ours.)
In the case at bar, the lands are located in Paraaque City, as stated on the
faces of the titles. Petitioner, thus, also correctly filed the petition in the
place where the lands are situated, pursuant to the following rule:
Venue of real actions. --- Actions affecting title to or possession of real
property, or interest therein, shall be commenced and tried in the proper
court which has jurisdiction over the area wherein the real property
involved, or a portion thereof, is situated.[19]
Petitioner, however, named as respondent the Register of Deeds of Pasay
City, under the mistaken impression that it was still the custodian of the
titles to lands in Paraaque. Later, petitioner learned that a Register of
Deeds for Paraaque City had taken over the record and custody of titles
therein. Petitioner, thus, promptly moved for leave of court to amend its
petition. This, to our mind, was justified. In preparing its amended petition,
petitioner likewise corrected its allegation on the location of the lands
involved.
Before the amended petition was filed, the trial court had already dismissed
the petition based on improper venue. It relied on the allegation in the
petition that the lands are located in Pasay City. However, the titles of the
land, copies of which were attached to the petition, plainly show that the
lands involved are situated in Paraaque City. The trial court should have
considered these annexes, as these form an integral part of the pleading.
At the very least, the trial court should have allowed petitioner to amend its
petition, for this was still a matter of right on its part.
Amendments as a matter of right. --- A party may amend his pleading once
as a matter of right at any time before a responsive pleading is served or, in
the case of a reply, at any time within ten (10) days after it is served. [20]
Amendments to pleadings are 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 speed the trial of cases or prevent the circuitry of
action and unnecessary expense. [21] The trial court, therefore, should have
allowed the amendment proposed by petitioner for in so doing, it would
have allowed the actual merits of the case to be speedily determined,
without regard to technicalities, and in the most expeditious and
inexpensive manner.[22]
The courts should be liberal in allowing amendments to pleadings to avoid
multiplicity of suits and in order that the real controversies between the
parties are presented, their rights determined and the case decided on the
merits without unnecessary delay. This liberality is greatest in the early
stages of a lawsuit, especially in this case where the amendment to the
complaint was made before the trial of the case thereby giving petitioner all
the time allowed by law to answer and to prepare for trial. [23]
WHEREFORE, the petition for review is GRANTED. The Orders dated
January 30, 1998, February 20, 1998, and March 30, 1998 are REVERSED
and SET ASIDE.LRC Case No. 97-0170 is ordered REINSTATED.
SO ORDERED.
RIERA VS. PALMAROLI (40PHIL 105)
G.R. No. 14851 September 13, 1919
ANTONIA RIERA Y BOTELLAS, petitioner,
vs.
VICENTE PALMAROLI, Consul General for Spain, VICENTE PALMAROLI,
Administrator of the Estate of Juan Pons y Coll, and the Honorable Pedro
Concepcion, Judge of the Court of First Instance of the city of
Manila, respondents.
Wolfson and Wolfson for petitioner.
Antonio V. Herrero for respondents.
STREET, J.:
This is an original petition filed in the Supreme Court under section 513 of
the Code of Civil Procedure by Antonio Riera y Botellas, the purpose of
which is to vacate an order of the Court of First Instance of the city of
Manila admitting to probate the will of Juan Pons y Coll, and to cause the
application for probate to be set for rehearing in the Court of First Instance.
The respondents having been required to answer, the cause is now here
heard on petition and answer, no formal proof having been as yet
submitted.
For the purpose of the solution of the questions arising in this case, the
facts may be taken to be as follows: Juan Pons y Coll, a Spanish subject
resident in the Philippine Islands, died on April 16, 1918, in the city of
Manila. The petitioner is the widow of the deceased and was at the time of
her husband's death residing in Palma de Mallorca in the Balearic Islands.
On April 19, 1918, the respondent Vicente Palmaroli, Consul General for
Spain in the Philippine Islands, produced in the Court of First Instance in
the city of Manila a document dated on March 16, 1918, purporting to be
the will of Juan Pons y Coll, and asked that it be admitted to probate.
Publication was accordingly made, and on May 20, 1918, order was
entered admitting the will to probate.
Owing to the great distance between Palma de Mallorca and the city of
Manila and to the lack of adequate means of communication between the
two places a difficulty then greatly exaggerated by conditions incident to
the European War the petitioner received no information of the probate
proceedings until after November 14, 1918. She had, however, received
information of the fact of her husband's death on or before June 19, 1918,
for upon that date an attorney employed by her in Palma de Mallorca
addressed a letter to Wolfson & Wolfson, attorneys in the city of Manila,
requesting them to look after the interests of the petitioner in the estate of
her deceased husband. Said communication was not received by the
attorneys mentioned until November 11, 1918, when promptly began the
investigations necessary to enable them to act in the matter; and on
November 29, 1918, they appeared in the Court of First Instance in behalf
of the petitioner and moved that the order of probate of May 20, 1918, be
set aside in order to allow the petitioner to enter opposition. This application
was made under section 113 of the Code of Civil Procedure and was
denied by the Court of First Instance on the ground that more than six
months had elapsed since the date of the order of probate and prior to the
filing of the motion.
The present application was thereupon made to the Supreme Court on
December 21, 1918, under section 513 of the Code of Civil Procedure, as
already stated.
The will to which reference has been made purports, for reasons stated
therein, to deprive the petitioner of participation in the testator's estate a
step which the test at or says he was authorized to take under the foral
regimen prevailing in the Balearic Islands. It is therefore, apparent that the
probate of the will was in fact prejudicial to the petitioner, as alleged; and
the petitioner claims that, as a party interested in the estate, she is entitled
to be heard in the matter of the probate of the will, having been prevented
from appearing and contesting the original application by circumstances
over which she had no control.
The order of the Court of First Instance of May 20, 1918, against which
relief is sought, is attacked by the petitioner on grounds having relation
chiefly to the formalities incident to the execution of the will. In the first
place it is said that if the will be considered with reference to our statutes
generally applicable to wills, it is void for failure to comply with the
requirements of Act No. 2645 of the Philippine Legislature. In this
connection attention is directed to the fact that the will is not signed on the
left margin of each page by the attesting witnesses and the pages are not
numbered as Act No. 2645 requires. In the second place it is said that if the
will in question be considered as the will of a Spanish subject, provable
under the special provisions of section 636 of the Code of Civil Procedure,
then it must be treated as void, for failure to comply with various
requirements unnecessary to be here stated in detail of the Spanish
laws in respect to the manner of execution of wills. As will be at once
apparent from an examination of section 636 of the Code of Civil
Procedure, if the will was in fact provable as the will of a Spanish subject,
under that section, and was admitted to probate as such, compliance with
the requirements of our local laws relative to the execution of wills was not
necessary. In such case the provisions governing the execution of the will
are to be sought in the laws of the country of which the testator was a
subject.
Another irregularity in the admission of the will in question to probate, as
stated in the petition, is that the document produced in court and actually
proved as the will of the decedent was not the original but a copy certified
by the Spanish Consul General in this city from the records of his own
office, the will having been executed before him on April 16, 1918, pursuant
to authority contained in the Treaty between the United States and Spain
proclaimed on April 20, 1903.
The question here presented in therefore this: Can a party who is
interested in the estate of a deceased person, and who has been
prevented by inevitable conditions from opposing the probate of the will,
obtain from the Supreme Court, under section 513 of the Code of Civil
Procedure, an order for a rehearing in the Court of First Instance, it being
alleged that she will was not executed with the formalities required by law
and hence was improperly admitted to probate?
In the case of the Estate of Johnson (39 Phil. Rep., 156),we held that a
Court of First Instance has the power, under section 113 of the Code of
Civil Procedure, to set aside an order admitting a will to probate and to
grant a rehearing of the application to admit the will, upon a showing from a
person interested in the estate to the effect that the order of probate was
erroneous and that the applicant had been prevented by conditions over
which he had no control from appearing at the original hearing and
opposing the probate of the will. It was also suggested in Banco Espaol-
Filipino vs. Palanca (37 Phil. Rep., 921) that the remedy conceded in
section 513 of the Code of Civil Procedure is supplementary to that
conceded in section 113 of the same Code; and it was added that apart
from these remedies there is no other means recognized in our procedure
whereby a defeated party can, by a proceeding in the same cause, procure
a judgment to be set aside with a view to the renewal of the litigation.
We shall now proceed to consider somewhat more closely the effect of the
two sections of the Code of Civil Procedure above cited, in relation to each
other and with special reference to the facts now before us. To this end it is
desirable to confront the text of the provisions in question:
SEC. 113. Upon such terms as may be just the court may relieve a party or
his legal representative from a judgment, order, or other proceeding taken
against him through his mistake, inadvertence, surprise, or excusable
neglect: Provided, That application therefor be made within a reasonable
time, but in no case exceeding six months after such judgment, order, or
proceeding was taken.
SEC. 513. When a judgment is rendered by a Court of First Instance upon
default, and a party thereto is unjustly deprived of a hearing by fraud,
accident, mistake, or excusable negligence, and the Court of First Instance
which rendered the judgment has finally adjourned so that no adequate
remedy exists in that court, the party so deprived of a hearing may present
his petition to the Supreme Court within sixty days after he first learns of
the rendition of such judgment, and not thereafter, setting forth the facts
and praying to have such judgment set aside. . . .
By comparing these two provisions it will be seen that the operative equity
which is contemplated as the basis of relief is similar, if not identical, in both
cases, inasmuch as the "mistake, inadvertence, surprise or excusable
neglect, "contemplated in section 113, is substantially the same as the
"fraud, accident, mistake or excusable negligence" of section 513. It is true
that fraud is not mentioned as aground of relief in section 113; but as was
indicated in Mortera and Eceiza vs. West of Scotland Insurance Office, Ltd.
(36 Phil. Rep., 994), if a judgment is procured by concealed fraudulent
practices the party injured may sometimes at least be relieved on the
ground that there was an excusable neglect on his part in failing to discover
and defeat such practice. With this prefatory observation we proceed to
consider the restrictions placed upon the use of the remedy conceded in
section 513.
The first point to which we direct our comment has reference to the lack of
an adequate remedy in the Court of First Instance. It is expressly declared
in section 513 that the remedy granted thereby is available only in case
"the Court of First Instance which rendered the judgment has finally
adjourned so that no adequate remedy exists in that court." A moment's
inspection of the entire section is sufficient to show that the quoted words
are not homogeneous with the remainder of the section, and moreover they
are not well adjusted to the sense and effect of section 113. The inference
is plain that they were inserted in section 513 probably by way of
amendment and by a person other than the original author. The person
who wrote these words evidently supposed that by the mere fact of
adjournment a Court of First Instance loses the power to entertain an
application for relief of the character here contemplated. It is quite obvious,
however, that the power granted in section 113 continues for six months
regardless of the adjournment of the court. In our judicial system a Court of
First Instance exists in each province, and a clerk is maintained at the
place appointed for the holding of court, whose duty it is to receive and file
applications, petitions, and complaints of all sorts. Consequently when an
application for relief against any judgment is properly made under section
113, and filed in the court, the matter is before the judge for action upon the
convening of the next session. The mere fact of adjournment cannot really
have the effect of shortening the period of six months allowed in section
113. In many American jurisdictions, however, the ending of the term of
court terminates absolutely the power of the court over its judgments. To a
person whose mind is imbued with this idea, the words "When . . . the
Court of First Instance which rendered the judgment has finally adjourned"
can only be understood as referring loosely to cases where the Court of
First Instance has by the affluxion of time lost all power to set aside or
modify its judgment; and this we consider to be its true meaning. The
consequence is that the remedy conceded in section 513 is available, other
conditions concurring, whenever the Court of First Instance is powerless to
grant relief, without regard to the six months limitation fixed in section 113.
The sense of this construction may perhaps be further elucidated by saying
that the controlling idea is the want of adequate remedy in the Court of First
Instance; and the reference to final adjournment in section 513 is to be
taken merely as explanatory of the want of remedy in that court and not as
embodying any absolute restriction upon the remedy conceded in section
513.
It may be argued that the words "and the Court of First Instance which
rendered the judgment has finally adjourned so that no adequate remedy
exists in that court" were intended to be applicable exclusively to the case
where the Court of First Instance might, if not already adjourned, grant
relief under section 113, but is prevented from so doing solely by reason of
the fact of adjournment. This would seem at first blush to be the literal
sense of the words used, but it gives to the provision an application so
narrow as to defeat the manifest purpose of the legislator; for under section
113 the power of the Court of First Instance to grant relief is limited to
applications made within six months after entry of the judgment against
which relief is sought. If the meaning be as here suggested, the relief
grantable by the Supreme Court under section 513 would also be
necessarily limited to applications made within six months, or at most,
within sixty days after the expiration of six months, and then only when it
should appear that the lower court had finally adjourned before the six
months within which it could have granted relief had expired. In this view
the sole function served by section 513 is to make sure that a person may
obtain relief in the Supreme Court whenever the Court of First Instance had
adjourned before six months after judgment entered; and no relief could be
granted by the Supreme Court upon applications made after the expiration
of eight months from the date of the judgment.
We consider this interpretation incorrect. It can hardly be supposed that
section 513 would have been incorporated in the Code if the only idea was
to enable a party having a right to relief in the Court of First Instance under
section 113 to direct his petition to the Supreme Court only when the Court
of First Instance has adjourned prior to the end of six months after
judgment entered. If such were the idea, the provision in question is, as we
have already seen, superfluous. The real purpose of section 513 in our
opinion is to enable an injured party under the conditions stated to apply to
the Supreme Court without reference to the six months limitation expressed
in section 113; and the expression "when the Court of First Instance . . .
has finally adjourned," as used in section 513, must not be understood as
referring exclusively to adjournment within six months after judgment
entered.
It is generally recognized that if a statute is ambiguous and capable of
more than one construction, the literal meaning of the words used may be
rejected if the result of adopting such meaning would be to defeat the
purpose of the legislature had in view. It is declared in article 1281 of the
Civil Code that if the words of a contract appear to be contrary to the
evident intention of the contracting parties, the intention shall prevail. This
rule is there stated with respect to the interpretation of contracts; but the
same idea may be accepted, though guardedly, as applicable in the
interpretation of statutes, and more especially those of a remedial nature.
Statutes of this kind are liberally construed to promote the object which the
legislature may be supposed to have had in view.
From what has been said it will be seen that the jurisdiction of the Supreme
Court to entertain a petition of the character of that now before us begins in
point of time when the period has passed within which it was competent for
the Court of First Instance to entertain an application under section 113;
and apart from the requirement that the application must be made to the
Supreme Court within two months after the petitioner first learns of the
rendition of judgment against which relief is sought, there is no absolute
limit to the period within which the application may be made. But of course
if relief from a judgment is sought by timely application in the Court of First
Instance, and the application is there denied, no petition based on the
same ground will thereafter be entertained in the Supreme Court under
section 513, as the proper remedy in that case would be to appeal from the
action of the Court of First Instance. (Rabajante vs. Moir and Rances, 28
Phil. Rep., 161.)
Proceeding now to a further comparison of sections 113 and 513, it is
noteworthy that while the power of the Court of First Instance to grant relief
under section 113 extends to the setting aside of any judgment, order or
proceeding whatever, the power of the Supreme Court under section 513 is
limited to granting a new trial upon judgments rendered upon default.
Now what is the meaning of "judgment rendered upon default," as used in
section 513? The reference is of course to the default mentioned in section
128 of the Code of Civil Procedure. (Simon vs. Castro and Castro, 6 Phil.
Rep., 335,337.) A default, such as is there intended, can only arise in
contentious litigation where a party who has been impleaded as a
defendant and served with process fails to appear at the time required in
the summons or to answer at the time provided by the rules of the court.
The proceeding to probate a will is not a contentious litigation in any sense,
because nobody is impleaded or served with process. It is a special
proceeding, and although notice of the application is published, nobody is
bound to appear and no order for judgment by default, is ever entered. If
the application is not opposed, the court may allow the will on the testimony
of one of the subscribing witnesses only (sec. 631, Code Civ. Proc.),
provided none of the reasons specified in section 634 of the Code of Civil
Procedure for disallowing the will are found to exist. If any interested
person opposes the probate, the court hears the testimony and allows or
disallows the will accordingly. From such judgment any interested person
may appeal to the Supreme Court within twenty days. (Sec. 781, Code Civ
Proc.) Though the action taken by a Court of First Instance in thus allowing
or disallowing a will is properly denominated a judgment, it is not a
judgment rendered upon default even though no person appears to oppose
the probate.
It is manifest from this that the remedy given in section 513 can have no
application to the order of May 20, 1918, legalizing the will of Juan Pons y
Coll; and this is necessarily fatal to the petition before us. This
consequence follows regardless of any irregularities that may have
occurred in the Court of First Instance in admitting the will to probate and
regardless of any error which that court may have committed in the action
taken upon the proof submitted at the hearing. It is not alleged that any
fraud has been attempted or committed, or that the document probated is
any other than a testamentary memorial in which the decedent actually
gave expression to his desires with regard to the disposition of his property.
But if fraud had been charged as, for instance, if it were alleged that the
purported will is forged document the remedy, if any exists, would not be
found in a proceeding under section 513, but in an original action in the
Court of First Instance. It thus becomes unneccessary to inquire whether
the will in question was in fact executed in conformity with the requirements
of law either of these Islands or of Spain.
As a result of this decision it cannot be denied that, without any fault on the
part of the petitioner or her attorneys, she has been deprived not only of the
opportunity of opposing the will and appealing from the order of probate but
also of the opportunity of applying to the Court of First Instance for relief
under section 113. Even assuming that she could have procured the
disallowance of the will by either of those methods a point upon which
no pronouncement can here be made it is obvious that the impossibility
of her thus obtaining relief was due to circumstances peculiar to this case;
and the possibility of occassional hardship cannot affect the validity of our
procedure for the probate of wills (Estate of Johnson, supra.)
A will is nothing more than a species of conveyance whereby a person is
permitted, with the formalities prescribed by law, to control in a certain
degree the disposition of his property after his death. Out of consideration
for the important interests involved the execution and proof of wills has
been surrounded by numerous safeguards, among which is the provisions
that after death of the testator his will may be judicially established in court.
The action of the court in admitting a will to probate has all the effect of a
judgment; and as such is entitled to full faith and credit in other courts. The
proceeding by which this is accomplished is considered to be in the nature
of a proceeding in rem, and upon this idea the decree of probate is held
binding on all persons in interest, whether they appear to contest the
probate or not. The proceeding is not a contentious litigation; and though
the persons in interest are given an opportunity to appear and reasonable
precautions are taken for publicity, they are not impleaded or required to
answer.
As has been repeatedly stated in the decisions of this court, the probate of
a will, while conclusive as to its due execution, in no wise involves the
intrinsic validity of its provisions. If, therefore, upon the distribution of the
estate of Juan Pons y Coll, it should appear that any provision of his will is
contrary to the law applicable to his case, the will must necessarily yield
upon that point and the disposition made by law must prevail. The
petitioner is therefore free to appear in the Court of First Instance at the
proper juncture and discuss the questions of the validity of such provisions
of the will as affect her interests adversely; and so far as we can see, on
the facts before us, this is her only recourse. But if the will in question was
in fact proved as the will of a Spanish subject under section 636 of the
Code of Civil Procedure, the intrinsic validity of its provisions must be
determined under the Spanish law applicable to this testator.
After the resolution embodied in the preceding opinion had been adopted
by the court, but before the decision had been promulgated, the attorneys
for the petitioner moved that an order be entered for the submission of
evidence and that the clerk of this court be appointed commissioner to take
the same, upon designation by him of the time and place therefor.
The step indicated would be proper if the facts stated in the petition had
been found sufficient to entitle the petitioner to relief, but inasmuch as the
petition is in our opinion insufficient, the making of the order suggested
becomes unneccessary.
In this connection it may be well to estate that when a petition for relief in
the exercise of our original jurisdiction is presented to this court, we are
accustomed to consider the case as being at all times before us for the
purpose of determining the legal sufficiency of the petition; and when it is
found at any stage of the proceeding that the allegations of the complaint
are insufficient to entitle the petitioner to relief of any sort, it is our practice
to enter an order upon our own motion dismissing the petition. Where the
defect apparent in the petition is of a sort that might be cured by
amendment, the order of dismissal is made conditional upon the failure of
the petitioner to amend within a period stated. On the other hand where the
defect is manifestly incurable it is proper to make the order of dismissal
absolute, and such appears to be the correct practice.
In the course of the preceding discussion we have, for the purpose of
explaining the situation more clearly, permitted ourselves to refer to at least
one detail not stated in the petition, as where we state that the will purports
to disinherit the petitioner. This fact, however, if not admitted, is
incontrovertible and apparent from the copy of the will exhibited with the
answer. Moreover, the point that no decisive influence on the decision. Our
opinion therefore is to be taken as an expression of our opinion upon the
legal sufficiency of the petition exclusively upon the statements contained
therein.
As will be discovered from the opinion, the inability of this court to grant
relief in the case before us is really due to the fact that the remedy
conceded in section 513 admitting wills to probate. The defect from which
the petition suffers is therefore not curable by amendment and cannot be
aided by the taking of proof. The request for an order allowing proof to be
submitted must therefore be denied, and judgment absolute will be entered
dismissing the petition with costs.

KILOSBAYAN FOUNDATION ET AL. vs. JANOLO, JR. ET AL (625 SCRA

684)

KILOSBAYAN G.R. No. 180543

 FOUNDATION and BANTAY Present:
KATARUNGAN
FOUNDATION, as CORONA, C.J.,
represented by JOVITO R. CARPIO,
SALONGA, CARPIO MORALES,
Petitioners, VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
- versus - BRION,
PERALTA,
BERSAMIN,
LEONCIO M. JANOLO, JR., DEL CASTILLO,
PRESIDING JUDGE, RTC, ABAD,
BRANCH 264, PASIG CITY; VILLARAMA, JR.,
GREGORY S. ONG, PEREZ, and
ASSOCIATE JUSTICE, MENDOZA, JJ.
SANDIGANBAYAN; and THE
LOCAL CIVIL REGISTRAR Promulgated:
OF SAN JUAN, METRO
MANILA, August 18, 2010
Respondents.
x-----------------------------------------------------------------------------------------x

DECISION

CARPIO MORALES, J.:

On July 9, 2007, private respondent Gregory Ong (Ong), following the

promulgation of the Courts Decision in Kilosbayan Foundation v. Ermita,
[1]
filed a petition[2] under Rule 108 of the Rules Court for the
amendment/correction/supplementation or annotation of the entry on
citizenship in his Certificate of Birth, docketed as Sp. Proc. No. 11767-SJ
and raffled to Branch 264 of the Regional Trial Court (RTC) of Pasig City
over which public respondent Leoncio Janolo, Jr. presided.

Via the present recourse of certiorari and prohibition,

petitioners Kilosbayan Foundation and Bantay Katarungan Foundation
assail four Orders and the Decision emanating from the proceedings in the
RTC case.

As Ongs petition was set for hearing by the RTC on August 7, 14, 21 and
28, 2007,[3] petitioners-therein oppositors[4] filed on August 6, 2007 a motion
for voluntary inhibition, which the RTC denied by Order of August 7, 2007,
a day after it was filed and prior to the hearing on the motion. [5] Despite the
pendency of petitioners motion for reconsideration, the RTC proceeded to
hear Ongs petition on August 14 and 21, 2007. It was only by Order
of September 17, 2007[6]that the motion for reconsideration was resolved, a
copy of which was received by petitioners on October 4, 2007.

Meanwhile, by Order of August 21, 2007,[7] the RTC declared petitioners in

default. Petitioners motion to vacate the order of default was likewise
denied by Order of October 4, 2007,[8] a copy of which was received by
petitioners on October 17, 2007. Subsequently, the RTC granted Ongs
petition and recognized him as a natural-born citizen of the Philippines,
by Decision of October 24, 2007.[9]

In the present petition filed on December 3, 2007, petitioners assert that

public respondent erred and committed grave abuse of discretion: (a) [i]n
not voluntarily inhibiting himself from presiding over the case; (b) [i]n
declaring herein [p]etitioners as having defaulted; and (c) in granting the
Petition of [r]espondent Gregory S. Ong.[10]

The Court, by Resolution of February 19, 2008, required respondents to

comment on the petition, with which Ong and the Office of the Solicitor
General (OSG) complied on March 14, 2008 and June 5, 2008,
respectively. Petitioners submitted their Consolidated Reply on December
10, 2008.

The Court shall first resolve the preliminary objections raised by

respondents. Both Ong and the OSG claim that petitioners availed
themselves of an improper remedy and disregarded the hierarchy of
courts. Ong adds that the defective verification renders the petition as
unsigned pleading, and the lack of service of the petition on all adverse
parties violates basic rules.
The question on the propriety of the remedy availed of by petitioners is
resolved in Cerezo v. Tuazon,[11] where the Court discussed the various
remedies available to a party declared in default, including a petition for
certiorari to declare the nullity of a judgment by default if the trial court
improperly declared a party in default, or even if the trial court properly
declared a party in default, if grave abuse of discretion attended such
declaration. A party declared in default may thus alternatively file a petition
for certiorari assailing both the order of default and the judgment of default.
[12]
On the choice of remedy, the Court finds petitioners recourse
procedurally allowable. The same, however, cannot be said as to the
choice of court forum.

The hierarchy of courts serves as a general determinant of the appropriate

forum for appeals and petitions for extraordinary writs. [13] The rule on
hierarchy of courts is not absolute, and the Court has full discretionary
power to take cognizance of a petition filed directly with it. A direct
invocation of this Courts original jurisdiction may be allowed where there
are special and important reasons therefor clearly and specifically set out in
the petition.[14]

The present petition is bereft of even a single allegation of exceptional and

compelling circumstance to warrant an exception to the rule. In fact, this
valid objection elicited no response from petitioners, who glossed over all
procedural issues in their Consolidated Reply. If petitioners themselves do
not provide the Court some basis for the direct recourse, the Court is not
minded to search for one.

Further, the petition carries a defective verification since it was verified

without stating the basis thereof. In the Verification/ Certification of the
Petition, the affiant states that he has read the same and all the facts
contained therein are true and correct.[15] The Rules clearly state that a
pleading is verified by an affidavit that the affiant has read the pleading and
that the allegations therein are true and correct of his personal knowledge
or based on authentic records, and a pleading required to be verified which
lacks a proper verification shall be treated as an unsigned pleading.
[16]
Verification is not an empty ritual or a meaningless formality. Its import
must never be sacrificed in the name of mere expedience or sheer
caprice. For what is at stake is the matter of verity attested by the sanctity
of an oath to secure an assurance that the allegations in the pleading have
been made in good faith, or are true and correct and not merely
speculative.[17]

Moreover, this Court observes that the affiant failed to present competent
evidence of his identity before the notary public, as required under the 2004
Rules on Notarial Practice.[18] The Court cannot assume that affiant, being a
public figure, is personally known to the notary public, for the jurat does not
contain a statement to that effect.

Records also show that petitioners failed to furnish public respondent with a
copy of the petition. The Rules require that the petition should be filed with
proof of service on all adverse parties, and that the failure to comply with
the requirement shall be sufficient ground for the dismissal of the petition. [19]

On procedural grounds alone then, the petition is susceptible to

dismissal. The Court deems it best, however, to resolve the substantial
issues in the interest of justice.

In their motion for voluntary inhibition, petitioners cite that Ong, his counsel,
and public respondent are members of the San Beda Law Alumni
Association which, along with the schools Benedictine community, publicly
endorsed and supported Ongs petition through newspaper
advertisements. Moreover, from the account of the proceedings, petitioners
point out that issuing the order of default without resolving the motion for
reconsideration of the order denying the motion for inhibition exhibits
blatant bias for being unduly precipitate and wholly unwarranted.
The rule on compulsory disqualification and voluntary inhibition of judges is
provided under Section 1, Rule 137 of the Rules of Court:

No judge or judicial officer shall sit in any case in which he, or his wife or
child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in
which he is related to either party within the sixth degree of consanguinity
or affinity, or to counsel within the fourth degree, computed according to the
rules of the civil law, or in which he has been executor, administrator,
guardian, trustee or counsel, or in which he has presided in any inferior
court when his ruling or decision is the subject of review, without the written
consent of all parties in interest, signed by them and entered upon the
record.

A judge may, in the exercise of his sound discretion, disqualify himself from
sitting in a case, for just or valid reasons other than those mentioned
above. (underscoring supplied)

In keeping with the tenet that judges should not only act with fairness,
independence, impartiality and honesty but should also be perceived to be
the embodiment of such qualities, the Court added the rule on voluntary
inhibition in 1964. In outlining the genesis of the provision, the Court
narrated:

In Umale v. Villaluz, the Court traced the history of the second paragraph of
the above-quoted provision, which had been added only as an amendment
to the Rules of Court in 1964. Prior to that year, the question on whether to
take cognizance of the case did not depend upon the discretion of the
judges not legally disqualified to sit in a given case. If those concerned
were not disqualified, it was their official duty to proceed with the case or
else risk being called upon to account for their dereliction. They could not
voluntarily inhibit themselves on grounds of prejudice or bias, extreme
delicacy, or even if they themselves took great interest and an active part in
the filing of the case. Gutierrez v. Santos and Del Castillo v.
Javelona paved the way for the recognition of other circumstances for
disqualification those that depended upon the exercise of discretion of the
judges concerned.[20]

While the second paragraph does not expressly enumerate the specific
grounds for inhibition and leaves it to the sound discretion of the judge,
such should be based on just or valid reasons. The import of the rule on the
voluntary inhibition of judges is that the decision on whether to inhibit is left
to the sound discretion and conscience of the judge based on his rational
and logical assessment of the circumstances prevailing in the case brought
before him. It makes clear to the occupants of the Bench that outside of
pecuniary interest, relationship or previous participation in the matter that
calls for adjudication, there might be other causes that could conceivably
erode the trait of objectivity, thus calling for inhibition. That is to betray a
sense of realism, for the factors that lead to preferences and predilections
are many and varied.[21]

In the final reckoning, there is really no hard and fast rule when it comes to
the inhibition of judges. Each case should be treated differently and
decided based on its peculiar circumstances.

The issue of voluntary inhibition is primarily a matter of conscience and

sound discretion on the part of the judge. It is a subjective test, the result of
which the reviewing tribunal will not disturb in the absence of any manifest
finding of arbitrariness and whimsicality. The discretion given to trial judges
is an acknowledgment of the fact that they are in a better position to
determine the issue of inhibition, as they are the ones who directly deal
with the parties-litigants in their courtrooms. [22]

Impartiality being a state of mind, there is thus a need for some kind of
manifestation of its reality, in order to provide good, sound or ethical
grounds or just and valid reasons for inhibition. [23] Bare allegations of bias
and prejudice are not enough in the absence of clear and convincing
evidence to overcome the presumption that a judge will undertake his noble
role to dispense justice according to law and evidence and without fear or
favor.[24] In Gochan v. Gochan,[25]the Court elucidated further:

Verily, the second paragraph of Section 1 of Rule 137 does not give judges
the unfettered discretion to decide whether to desist from hearing a
case. The inhibition must be for just and valid causes. The mere imputation
of bias or partiality is not enough ground for them to inhibit, especially when
the charge is without basis. This Court has to be shown acts or conduct
clearly indicative of arbitrariness or prejudice before it can brand them with
the stigma of bias or partiality.
In a string of cases, the Supreme Court has said that bias and prejudice, to
be considered valid reasons for the voluntary inhibition of judges, must be
proved with clear and convincing evidence. Bare allegations of their
partiality will not suffice. It cannot be presumed, especially if weighed
against the sacred oaths of office of magistrates, requiring them to
administer justice fairly and equitably both to the poor and the rich, the
weak and the strong, the lonely and the well-connected. [26] (emphasis and
underscoring supplied)

The Court applied the same precept in Pagoda Philippines, Inc. v.

Universal Canning, Inc.[27] where the judges right to inhibit was weighed
against his duty to decide the case without fear of repression. Indeed, the
automatic granting of a motion for voluntary inhibition would open the
floodgates to a form of forum-shopping, in which litigants would be allowed
to shop for a judge more sympathetic to their cause, and would prove
antithetical to the speedy and fair administration of justice. [28]

A judge must decide based on a rational and logical assessment of the

circumstances prevailing in a case brought before him. [29] In the present
case, petitioners cite public respondents affiliation with an alumni
association as the sole ground to which they anchor their motion for the
voluntary inhibition of public respondent.

Before the trial court, petitioners alleged that the law school ties among
public respondent, Ong and his counsel, they having graduated from San
Beda College of Law, albeit years apart, spell partiality.

Inhibition is not allowed at every instance that a schoolmate or classmate

appears before the judge as counsel for one of the parties, however. [30] In
one case,[31]the Court ruled that organizational affiliation per se is not a
ground for inhibition.

Membership in a college fraternity, by itself, does not constitute a ground to

disqualify an investigator, prosecutor or judge from acting on the case of a
respondent who happens to be a member of the same fraternity. A trial
Judge, appellate Justice, or member of this Court who is or was a member
of a college fraternity, a university alumni association, a socio-civic
association like Jaycees or Rotary, a religion-oriented organization like
Knights of Columbus or Methodist Men, and various other fraternal
organizations is not expected to automatically inhibit himself or herself from
acting whenever a case involving a member of his or her group happens to
come before him or her for action.

A member in good standing of any reputable organization is expected all

the more to maintain the highest standards of probity, integrity, and honor
and to faithfully comply with the ethics of the legal profession.
[32]
(underscoring supplied)

The added fact that the law schools alumni association published
statements in support of Ongs application cannot lend credence to the
imputation of bias on the part of pubic respondent. No clear and convincing
evidence was shown to indicate that public respondent actively sponsored
and participated in the adoption and publication of the alumni associations
stand. It is inconceivable to suppose that the alumni associations statement
obliged all its members to earnestly embrace the manifesto as a matter of
creed.

Arbitrariness cannot be inferred either from the fact that public respondent
resolved the motion for voluntary inhibition one day after it was filed. Since
the personal process of careful self-examination [33] is essentially a matter of
conscience, the judge may decide as soon as the factual basis of the
motions has been clearly laid before the court because from there on the
resolution of the motion enters the subjective phase.

That public respondent, Ong and his counsel former Senator Rene
Saguisag are all graduates of San Beda College of Law was clearly and
early on established. Hence, this sole ground relied upon by petitioners in
their motion, it bears repeating, no longer required a hearing or called for
the submission of a comment or opposition, and the absence thereof did
not prejudice petitioners.

In one case,[34] it was held that the Rules of Court does not direct the court
to order the filing of comments or oppositions to the motion before the
motion is resolved. The parties may orally argue and ventilate their
positions and, thereafter, the court may rule on the motion.
The Court notes that when petitioners filed the Omnibus Motion (for
reconsideration and deferment) which basically reiterated their previous
arguments, they no longer set the motion for hearing and simply submitted
their motion ex parte without further arguments, thereby recognizing the
non-litigious nature of their allegations.

Even assuming that Ong interposed no objection to the motion, it was still
up to public respondent to discern, for a qualified judge cannot be ousted
from sitting in a case by sheer agreement of the parties.

Petitioners further complain that public respondent proceeded to hear the

case and declared them in default without first resolving their pending
motion. Records show that petitioners filed on August 13, 2007 an
Omnibus Motion[35] for reconsideration of the August 7, 2007 Order and for
deferment of the hearings set on August 14, 21 and 28, 2007. Petitioners,
thereafter, did not appear in the various settings, they alleging that the
question of voluntary inhibition, which they deem to be an overriding
consideration partaking of a highly prejudicial matter, had yet to be resolved
by the trial court.[36]

While there is no specific rule providing for a definite period of time within
which to resolve a motion for reconsideration of an order denying inhibition,
judges must endeavor to act promptly on it within the mandatory 90-day
period so as not to interrupt the course of trial. [37]

The trial court narrated what transpired on August 14, 2007 as confirmed
by the entry of the nunc pro tunc Order of September 17, 2007 making on
record the denial of the Omnibus Motion.

During the hearing on August 14, 2007, the Court, after considering the
arguments and counter-arguments from petitioner [Ong] and the Office of
the Solicitor General, and finding no cogent reasons to reconsider its earlier
position, denied in open court the motion seeking a reconsideration of the
Order dated August 7, 2007 which denied movants Motion for Voluntary
Inhibition of Presiding Judge. Corollarily, for lack of merit, the motion to
defer the proceedings in the instant case was similarly denied. (see
TSN, August 14, 2007, pp. 13). (citation in the original) [38]

The cited record of the proceedings validates the disposition made by the
trial court on the given date, during which time petitioners failed to
appear. After hearing the arguments, the trial court ruled as follows, quoted
verbatim:

COURT: Thats right, so theres no basis to overturn our previous Order

denying the motion to voluntary inhibition filed by Atty. Capulong Now,
theres another matter being raised here, counsel could not have a valid
argument here to delay the proceedings What the Supreme Court wanted
is to have an Order summary of the proceeding because Kilos Bayan did
sought at their level. Supreme Court was expecting that they will do so
again in our level, but in since theres seems to be no good idea waiting for
the adversary arguments, so, it will, when it reaches the Supreme Court, it
will repeat the purpose to which they were directed to litigate. Theyre
supposed to litigate because if they believe theyre for the denial of the
petition, unless the application for declaration of natural born citizen, they
should do so without any delay, so, use Bayan as a very an active group
and Bantay Katarungan, they should be a party to expeditious resolution of
cases, not to a delay. How many are we here from government. We are
here to litigate. So, the Motion for Reconsideration is denied, and Motion to
Defer Further Proceedings is also denied.The settings for August were all
placed in the Order which was published in the newspaper of general
circulation. We have previously agreed that we will proceed to cross of
petitioner and witnesses. Are you ready or would you agree to the
suggestion by the Court that we conduct pre-trial? [39] (underscoring
supplied)

The issuance of a nunc pro tunc order is recognized where an order

actually rendered by a court at a former time had not been entered of
record as rendered.[40] The phrase nunc pro tunc signifies now for then, or
that a thing is done now that shall have the same legal force and effect as if
done at the time it ought to have been done. [41] The purpose of an
order nunc pro tunc is to make a present record of an order that the court
made in a previous term, but which was not then recorded. It can only be
made when the thing ordered has previously been made, but, by
inadvertence, has not been entered.[42]

In the case at bar, the trial court actually took judicial action which was,
however, by mistake or inadvertence, not placed in proper form on
record. In any event, petitioners neither seriously contest the veracity of the
transcript used as basis for such confirmatory order nor claim any
unwarranted prejudice from the fact of its resolution during their non-
appearance in the scheduled hearing.

The disallowance of a motion for postponement is not sufficient to show

arbitrariness and partiality of the trial court. [43] For one, the grant of such is
not a matter of right for it is addressed to the sound discretion of the court.
[44]
Parties have absolutely no right to assume that their motion for
deferment would be granted, hence, they should prepare for the hearing,
lest they pass the blame to no one but themselves.

Further, in considering such motions, two things must be borne in mind: (1)
the reason for the postponement and (2) the merits of the case of the
movant.[45] In this case, the requested postponement was premised on the
pendency of the motion for reconsideration. The Omnibus Motion was,
however, submitted ex parte and without further arguments from
Oppositors,[46] drawing public respondent to promptly resolve it by denying
it.

As to the merits of the case of petitioners, the trial court was left with
nothing to assess since they did not file any Opposition to Ongs Petition
despite the grant to them of extension of time for the purpose and their
various submissions to the trial court all related to peripheral issues.

No trace of bias can be found at that juncture when the court proceeded to
declare petitioners in default after resolving the pending incidents. It is an
equally important doctrine that bias and prejudice must be shown to have
resulted in an opinion on the merits on the basis of an extrajudicial source,
not on what the judge learned from participating in the case. As long as
opinions formed in the course of judicial proceedings are based on the
evidence presented and the conduct observed by the magistrate, such
opinion even if later found to be erroneous will not prove personal bias or
prejudice on the part of the judge. While palpable error may be inferred
from the decision or the order itself, extrinsic evidence is required to
establish bias, bad faith, malice or corrupt purpose. [47]

Divergence of opinion as to applicable laws and jurisprudence between

counsel and the judge is not a proper ground for disqualification. Opinions
framed in the course of judicial proceedings, although erroneous, as long
as they are based on the evidence presented and conduct observed by the
judge, do not prove bias or prejudice. Repeated rulings against a litigant no
matter how erroneous are not bases for disqualification. [48]

As for the allegation of undue haste, the Court cannot appreciate it,
considering that the trial court even granted petitioners additional period
within which to file an Opposition and in view of the nature of the case,
which empowers the trial court to make orders expediting proceedings. [49]

In the absence then of clear and convincing evidence to prove the charge,
a ruling not to inhibit oneself cannot just be overturned. [50] In this case,
petitioners failed to demonstrate such acts or conduct clearly indicative of
arbitrariness or prejudice as to thaw the attributes of the cold neutrality of
an impartial judge. Unjustified assumptions and mere misgivings that the
hand of prejudice, passion, pride and pettiness moves the judge in the
performance of his functions are patently weak to parry the presumption
that a judge shall decide on the merits of a case with an unclouded vision
of its facts.

In fine, the Court finds no grave abuse of discretion when public

respondent did not inhibit himself from hearing the case.
On the second issue, petitioners assail the Orders of August 21,
2007 and October 4, 2007 declaring them in default and denying their
motion to vacate order, respectively.

Rules of procedure, especially those prescribing the time within which

certain acts must be done, have often been held as absolutely
indispensable to the prevention of needless delays and to the orderly and
speedy discharge of business.[51] Section 5, Rule 108 of the Rules of Court
provides that [t]he civil registrar and any person having or claiming any
interest under the entry whose cancellation or correction is sought may,
within fifteen (15) days from notice of the petition, or from the last date of
publication of such notice, file his opposition thereto. Records show that the
notice was last published on July 26, 2007.[52]

The trial court pointed out that petitioners filed their entry of
appearance[53] without any attached Opposition to Ongs petition and that,
despite the grant to them of additional five days from August 7, 2007, they
still failed to make a submission. Petitioners do not contest the trial courts
earlier observation that at the August 7, 2007 hearing, petitioners counsel
undertook to submit the Opposition within the extended period and to
appear at the next hearing,[54] where eventually both their pleading and
presence turned up unforthcoming.

Petitioners thereafter filed an Urgent Ex-Parte Motion to Vacate the August

21, 2007 Order, insisting that the Omnibus Motion presented a prejudicial
issue that should have been resolved first before the trial court proceeded
with the case. Notably, in both the Motion to Vacate Order and the
Memorandum and/or Submission, petitioners relied only on this ground and
impliedly waived other defenses or grounds for the lifting of the default
order.
For a motion to lift an order of default to prosper, the following requisites
must concur: (1) it must be made by motion under oath by one who has
knowledge of the facts; (2) it must be shown that the failure to file answer
was due to fraud, accident, mistake or excusable negligence; and (3) there
must be a proper showing of the existence of meritorious defense. [55]

As the trial court observed, the motion to vacate or set aside the order of
default failed to comply with paragraph (b), Section 3, Rule 9 of the Rules
of Court,[56] it noting, inter alia, that the motion was not under oath, it failed
to explain or justify why movants have not filed any opposition to the
petition, and it was not accompanied by an affidavit of merit. [57]
Indeed, a trial court has no authority to consider a motion to lift the order of
default where such motion was not made under oath. [58] Moreover, a motion
to lift an order of default must allege with particularity the facts constituting
the fraud, accident, mistake or excusable neglect which caused the failure
to answer.[59]

In this case, petitioners unverified motion does not contain any justifiable
reason for their failure to file an appropriate responsive
pleading. Petitioners persistent stance on the pendency of their Omnibus
Motion deserves scant consideration in view of the recognition of the nunc
pro tunc order confirming the August 14, 2007 denial of such motion.

Moreover, the filing of a motion for inhibition could not toll the running of the
reglementary period to file a responsive pleading, for where a period is to
be suspended by the filing of a pleading, the Rules of Court expressly
provides for such a suspension. [60] Despite the grant of an extension of
time, petitioners did not file an Opposition to Ongs Petition, even one ex
abundante ad cautelam that would have sufficiently dealt with their concern
over the alleged pending incident.

Further, petitioners failed to allege, much less demonstrate, a meritorious

defense or any argument to protect whatever interest they may have under
the entry which they resist to be corrected, either embodied in a separate
affidavit of merit or embedded in the verified motion itself. [61] Petitioners
would later admit that they are not real adversarial litigants in the juridical
sense as they are acting as judicial monitors and observers. [62]

Velayo-Fong v. Velayo[63] discusses the meaning of meritorious defense:

Moreover, when a party files a motion to lift order of default, she must also
show that she has a meritorious defense or that something would be
gained by having the order of default set aside. The term meritorious
defense implies that the applicant has the burden of proving such a
defense in order to have the judgment set aside. The cases usually do not
require such a strong showing. The test employed appears to be
essentially the same as used in considering summary judgment, that
is, whether there is enough evidence to present an issue for submission to
the trier of fact, or a showing that on the undisputed facts it is not clear that
the judgment is warranted as a matter of law. The defendant
must show that she has a meritorious defense otherwise the grant of her
motion will prove to be a useless exercise. Thus, her motion must be
accompanied by a statement of the evidence which she intends to present
if the motion is granted and which is such as to warrant a reasonable belief
that the result of the case would probably be otherwise if a new trial is
granted.[64] (emphasis in the original)

Conjunctively, the glaring deficiencies negate the posture that petitioners

had no intention to delay the case and that their defenses, if any, deserve
to see the light of day in court. David v. Gutierrez-Fruelda[65] did not
countenance the failure to comply with the basic requirements of a motion
to lift an order of default.Accordingly, public respondent did not arbitrarily
declare them in default and deny their motion to lift the order of default.

Respecting the trial courts Decision of October 24, 2007, petitioners

recapitulate their arguments against the inhibition and default orders to
conclude that the assailed decision is insupportable. [66] As lone ground,
petitioners posit that the special proceedings under Rule 108 do not fall
under the juridical concept of adversarial proceedings in the absence of
effective adversaries since the Office of the Civil Registrar is a formal party
while the Office of the Solicitor General sided with Ongs legal
position. Petitioners admit that they, while being parties in interest in their
capacity as judicial monitors and observers, are not real adversarial
litigants in the juridical sense.[67]

The Court, in Kilosbayan Foundation v. Ermita,[68] stated that substantial

corrections to the nationality or citizenship of persons recorded in the civil
registry are effected through a petition filed in court under Rule 108 of the
Rules of Court. Jurisprudence has settled that such proceedings are
adversarial in nature or [o]ne having opposing parties; contested, as
distinguished from an ex parte application, one which the party seeking
relief has given legal warning to the other party, and afforded the latter an
opportunity to contest it.[69] In this case, impleaded as defendants were the
Civil Registrar of San Juan, Metro Manila and any other person having or
claiming an interest under the entry sought to be corrected. The interest of
the State was amply represented by the Office of the Solicitor General,
while petitioners interest was deemed waived when they failed to appear
and file a responsive pleading.

Petitioners raise no additional ground to substantiate their imputation of

grave abuse of discretion on the part of public respondent insofar as the
issuance of the October 24, 2007 Decision is concerned. Since no further
issues were raised, the Court is precluded from making a definitive
pronouncement on the substantial aspect of the assailed decision.

WHEREFORE, in light of all the foregoing, the petition is DISMISSED.