STATUTORY CONSTRUCTION CASE

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, second-prize 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 pre-requisite 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 cost.

CASE DIGEST:

18 SCRA 247 Statutory Construction Construction; defined Noscitur A Sociis

In 1960, Caltex (Philippines), Inc. announced its Caltex Hooded Pump Contest. The mechanics of the
contest were as follows:
1. Participants must estimate the actual number of liters a hooded gas pump at each Caltex station will
dispense during a specified period;
2. Contest is open to all car owners or licensed drivers;
3. Participants need not buy any Caltex products to be eligible. No fee is required.
4. Participants just need to fill out a form and drop their entries at the nearest Caltex station.
To publicize their contest, Caltex sought the assistance of the Philippine Postal Office. However, then
acting Postmaster Enrico Palomar denied the request of Caltex as Palomar deemed that the contest is a
violation of the Postal Law (Chapter 52 of the Revised Administrative Code [RAC]).
Palomar cited Section 1954 of the RAC:
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 anylottery, 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.
According to Palomar, the contest is a lottery hence, communications pertaining thereto cannot be mailed
by Caltex via Philippine Post.
Feeling aggrieved, Caltex brought the issue before the regular courts thru a petition for declaratory relief.
Caltex argued that their contest is not a lottery; that under prevailing jurisprudence, lottery consists of the
following elements:
a. consideration;
b. prize;
c. chance.
Caltex insists that their contest is not a lottery because the first element, consideration, is missing. Said
element is missing because participants are not required to pay anything theres no consideration on the
part of the participants.
Palomar assailed the petition as he argued that the same is not proper. He insisted that he was merely
applying the law and that there is no legal issue at all; that there is no need for the courts to call for a
construction on the statute in question. Palomar further argued that even if the said contest, assuming
arguendo, is not considered a lottery, the same is considered as a gift enterprise which is still prohibited
by the Postal Law to be mailed.
ISSUES:
1. Whether or not Caltexs petition for declaratory relief is proper.
2. Whether or not the Caltex contest is a lottery/gift enterprise.
HELD:
1. Yes. The petition is proper. Construction of a law is in order if what is in issue is an inquiry into the
intended meaning of the words used in a certain law. As defined in Blacks Law Dictionary: Construction
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.
2. No.
The contest is not a lottery. The contention of Caltex is well taken, i.e., the first element is lacking (no
consideration).
The contest is also not a gift enterprise. The Supreme Court went on to discuss that under prevailing
jurisprudence and legal doctrines as well as definitions provided by legal luminaries, there is no explicit
definition as to what a gift enterprise is. However, under the Postal Law, the term gift enterprise was
used in association with the term lottery. As such, the principle of noscitur a sociis, a principle in
statutory construction, is applicable. Under this principle, 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, applying noscitur a sociis, if lottery is prohibited only if it involves a
consideration, so also must the term gift enterprise be so construed. Therefore, since the contest does
not include a consideration, it is neither a lottery nor a gift enterprise. Caltex should be allowed to avail of
the Philippine postal service.
CASE # 2:

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-61236 January 31, 1984

NATIONAL FEDERATION OF LABOR and ZAMBOWOOD MONTHLY EMPLOYEES

UNION, ITS OFFICERS AND MEMBERS, petitioners,
vs.
THE HONORABLE CARLITO A. EISMA, LT. COL. JACOB CARUNCHO, COMMANDING
OFFICER, ZAMBOANGA DISTRICT COMMAND, PC, AFP, and ZAMBOANGA WOOD
PRODUCTS, respondents.

Jose C. Espina and Potenciano Flores for petitioners.

The Solicitor General for public respondents.

Gaspar V. Tagalo for private respondent Zamboanga Wood Products.

FERNANDO, C.J.:

This Court is confronted once again with the question of whether or not it is a court or a labor arbiter that
can pass on a suit for damages filed by the employer, here private respondent Zamboanga Wood Products.
Respondent Judge Carlito A. Eisma 1 then of the Court of First Instance, now of the Regional Trial Court
of Zamboanga City, was of the view that it is a court and denied a motion to dismiss filed by petitioners
National Federation of labor and Zambowood Monthly Employees Union, its officers and members. It
was such an order dated July 20, 1982 that led to the filing of this certiorari and prohibition proceeding. In
the order assailed, it was required that the officers and members of petitioner union appear before the
court to show cause why a writ of preliminary injunction should not be issued against them and in the
meanwhile such persons as well as any other persons acting under their command and on their behalf
were "temporarily restrained and ordered to desist and refrain from further obstructing, impeding and
impairing plaintiff's use of its property and free ingress to or egress from plaintiff's Manufacturing
Division facilities at Lumbayao, Zamboanga City and on its road right of way leading to and from said
plaintiff's facilities, pending the determination of the litigation, and unless a contrary order is issued by
this Court." 2

The record discloses that petitioner National Federation of Labor, on March 5, 1982, filed with the
Ministry of Labor and Employment, Labor Relations Division, Zamboanga City, a petition for direct
certification as the sole exclusive collective bargaining representative of the monthly paid employees of
the respondent Zamboanga Wood Products, Inc. at its manufacturing plant in Lumbayao, Zamboanga
City. 3 Such employees, on April 17, 1982 charged respondent firm before the same office of the Ministry
of Labor for underpayment of monthly living allowances. 4Then came, on May 3, 1982, from petitioner
union, a notice of strike against private respondent, alleging illegal termination of Dionisio Estioca,
president of the said local union; unfair labor practice, non-payment of living allowances; and
"employment of oppressive alien management personnel without proper permit. 5 It was followed by the
union submitting the minutes of the declaration of strike, "including the ninety (90) ballots, of which 79
voted for yes and three voted for no." 6The strike began on May 23, 1982. 7 On July 9, 1982, private
respondent Zambowood filed a complaint with respondent Judge against the officers and members of
petitioners union, for "damages for obstruction of private property with prayer for preliminary injunction
and/or restraining order." 8 It was alleged that defendants, now petitioners, blockaded the road leading to
its manufacturing division, thus preventing customers and suppliers free ingress to or egress from such
premises. 9 Six days later, there was a motion for the dismissal and for the dissolution of the restraining
order and opposition to the issuance of the writ of preliminary injunction filed by petitioners. It was
contended that the acts complained of were incidents of picketing by defendants then on strike against
private respondent, and that therefore the exclusive jurisdiction belongs to the Labor Arbiter pursuant to
Batas Pambansa Blg. 227, not to a court of first instance.10 There was, as noted earlier, a motion to
dismiss, which was denied. Hence this petition for certiorari.

Four days after such petition was filed, on August 3, 1982, this Court required respondents to answer and
set the plea for a preliminary injunction to be heard on Thursday, August 5, 1982. 11 After such hearing,
a temporary restraining order was issued, "directing respondent Judge and the commanding officer in
Zamboanga and his agents from enforcing the ex-parte order of injunction dated July 20, 1982; and to
restrain the respondent Judge from proceeding with the hearing of the until otherwise case effective as of
[that] date and continuing ordered by [the] Court. In the exercise of the right to peaceful picketing,
petitioner unions must abide strictly with Batas Pambansa Blg. 227, specifically Section 6 thereof,
amending Article 265 of the Labor Code, which now reads: '(e) No person engaged in picketing shall
commit any act of violence, coercion or intimidation or obstruct the free ingress to or egress from the
employer's premises for lawful purposes, or obstruct public thoroughfares.' " 12

On August 13, 1982, the answer of private respondent was filed sustaining the original jurisdiction of
respondent Judge and maintaining that the order complained of was not in excess of such jurisdiction, or
issued with grave abuse of discretion. Solicitor General Estelito P. Mendoza, 13 on the other hand, instead
of filing an answer, submitted a Manifestation in lieu thereof. He met squarely the issue of whether or not
respondent Judge had jurisdiction, and answered in the negative. He (i)ncluded that "the instant petition
has merit and should be given due course."

He traced the changes undergone by the Labor Code, citing at the same time the decisions issued by this
Court after each of such changes. As pointed out, the original wording of Article 217 vested the labor
arbiters with jurisdictional. 14 So it was applied by this Court in Garcia v. Martinez 15 and in Bengzon v.
Inciong. 16 On May 1, 1978, however, Presidential Decree No. 1367 was issued, amending Article 217,
and provided "that the Regional Directors shall not indorse and Labor Arbiters shall not entertain claims
for moral and other forms of damages." 17 The ordinary courts were thus vested with jurisdiction to
award actual and moral damages in the case of illegal dismissal of employees. 18 That is not, as pointed
out by the Solicitor General, the end of the story, for on May 1, 1980, Presidential Decree No. 1691 was
issued, further amending Article 217, returning the original jurisdiction to the labor arbiters, thus enabling
them to decide "3. All money claims of workers, including those based on non-payment or underpayment
of wages, overtime compensation, separation pay and other benefits provided by law or appropriate
agreement, except claims for employees compensation, social security, medicare and maternity benefits;
[and] (5) All other claims arising from employer-employee relations unless expressly excluded by tills
Code." 19 An equally conclusive manifestation of the lack of jurisdiction of a court of first instance then,
a regional trial court now, is Batas Pambansa Blg. 130, amending Article 217 of the Labor Code. It took
effect on August 21, 1981. Subparagraph 2, paragraph (a) is now worded thus: "(2) those that involve
wages, hours of work and other terms and conditions of employment." 20 This is to be compared with the
former phraseology "(2) unresolved issue in collective bargaining, including those that involve wages,
hours of work and other terms and conditions of employment." 21 It is to be noted that Batas Pambansa
Blg. 130 made no change with respect to the original and exclusive jurisdiction of Labor Arbiters with
respect to money claims of workers or claims for damages arising from employer-employee relations.

Nothing becomes clearer, therefore, than the meritorious character of this petition. certiorari and
prohibition lie, respondent Judge being devoid of jurisdiction to act on the matter.

1. Article 217 is to be applied the way it is worded. The exclusive original jurisdiction of a labor arbiter is
therein provided for explicitly. It means, it can only mean, that a court of first instance judge then, a
regional trial court judge now, certainly acts beyond the scope of the authority conferred on him by law
when he entertained the suit for damages, arising from picketing that accompanied a strike. That was
squarely within the express terms of the law. Any deviation cannot therefore be tolerated. So it has been
the constant ruling of this Court even prior toLizarraga Hermanos v. Yap Tico, 22 a 1913 decision. The
ringing words of the ponencia of Justice Moreland still call for obedience. Thus, "The first and
fundamental duty of courts, in our judgment, is to apply the law. Construction and interpretation come
only after it has been demonstrated that application is impossible or inadequate without them." 23 It is so
even after the lapse of sixty years. 24

2. On the precise question at issue under the law as it now stands, this Court has spoken in three
decisions. They all reflect the utmost fidelity to the plain command of the law that it is a labor arbiter, not
a court, that ossesses original and exclusive jurisdiction to decide a claim for damages arising from
picketing or a strike. In Pepsi-Cola Bottling Co. v. Martinez, 25 the issue was set forth in the opening
paragraph, in the ponencia of Justice Escolin: "This petition for certiorari, prohibition and mandamus
raises anew the legal question often brought to this Court: Which tribunal has exclusive jurisdiction over
an action filed by an employee against his employer for recovery of unpaid salaries, separation benefits
and damages the court of general jurisdiction or the Labor Arbiter of the National Labor Relations
Commission [NLRC]?" 26 It was categorically held: "We rule that the Labor Arbiter has exclusive
jurisdiction over the case."27 Then came this portion of the opinion: "Jurisdiction over the subject matter
in a judicial proceeding is conferred by the sovereign authority which organizes the court; and it is given
only by law. Jurisdiction is never presumed; it must be conferred by law in words that do not admit of
doubt. Since the jurisdiction of courts and judicial tribunals is derived exclusively from the statutes of the
forum, the issue before us should be resolved on the basis of the law or statute now in force. We find that
law in presidential Decree 1691 which took effect on May 1, 1980, Section 3 of which reads as follows: ...
Article 217. Jurisdiction of Labor Arbiters and the Commission. (a) The Labor Arbiters shall have the
original and exclusive jurisdiction to hear and decide the following cases involving all workers, whether
agricultural or non-agricultural: ... 3. All money claims of workers, including those based on nonpayment
or underpayment of wages, overtime compensation, separation pay and other benefits provided by law or
appropriate agreement, except claims for employees' compensation, social security, medicare and
maternity benefits; 4. Cases involving household services; and 5. All other claims arising from employer-
employee relations, unless expressly excluded by this Code." 28 That same month, two other cases were
similarly decided, Ebon v. De Guzman 29 and Aguda v. Vallejos. 30

3. It is regrettable that the ruling in the above three decisions, decided in March of 1982, was not followed
by private respondent when it filed the complaint for damages on July 9, 1982, more than four months
later. 31 On this point, reference may be made to our decision in National Federation of Labor, et al. v.
The Honorable Minister of Labor and Employment, 32 promulgated on September 15, 1983. In that case,
the question involved was the failure of the same private respondent, Zamboanga Wood Products, Inc., to
admit the striking petitioners, eighty-one in number, back to work after an order of Minister Blas F. Ople
certifying to the National Labor Relations Commission the labor dispute for compulsory arbitration
pursuant to Article 264 (g) of the Labor Code of the Philippines. It was noted in the first paragraph of our
opinion in that case: "On the face of it, it seems difficult to explain why private respondent would not
comply with such order considering that the request for compulsory arbitration came from it. It ignored
this notification by the presidents of the labor unions involved to its resident manager that the striking
employees would lift their picket line and start returning to work on August 20, 1982. Then, too, Minister
Ople denied a partial motion for reconsideration insofar as the return-to-work aspect is concerned which
reads: 'We find no merit in the said Motion for Reconsideration. The Labor code, as amended, specifically
Article 264 (g), mandates that whenever a labor dispute is certified by the Minister of Labor and
Employment to the National Labor Relations Commission for compulsory arbitration and a strike has
already taken place at the time of certification, "all striking employees shall immediately return to work
and the employees shall immediately resume operations and readmit all workers under the same terms
and conditions prevailing before the strike." ' " 33 No valid distinction can be made between the exercise
of compulsory arbitration vested in the Ministry of Labor and the jurisdiction of a labor arbiter to pass
over claims for damages in the light of the express provision of the Labor Code as set forth in Article 217.
In both cases, it is the Ministry, not a court of justice, that is vested by law with competence to act on the
matter.

4. The issuance of Presidential Decree No. 1691 and the enactment of Batas Pambansa Blg. 130, made
clear that the exclusive and original jurisdiction for damages would once again be vested in labor arbiters.
It can be affirmed that even if they were not that explicit, history has vindicated the view that in the
appraisal of what was referred to by Philippine American Management & Financing Co., Inc. v.
Management & Supervisors Association of the Philippine-American Management & Financing Co.,
Inc. 34 as "the rather thorny question as to where in labor matters the dividing line is to be
drawn" 35 between the power lodged in an administrative body and a court, the unmistakable trend has
been to refer it to the former. Thus: "Increasingly, this Court has been committed to the view that unless
the law speaks clearly and unequivocally, the choice should fall on [an administrative
agency]." 36 Certainly, the present Labor Code is even more committed to the view that on policy
grounds, and equally so in the interest of greater promptness in the disposition of labor matters, a court is
spared the often onerous task of determining what essentially is a factual matter, namely, the damages that
may be incurred by either labor or management as a result of disputes or controversies arising from
employer-employee relations.

WHEREFORE, the writ of certiorari is granted and the order of July 20, 1982, issued by respondent
Judge, is nullified and set aside. The writ of prohibition is likewise granted and respondent Judge, or
whoever acts in his behalf in the Regional Trial Court to which this case is assigned, is enjoin from taking
any further action on Civil Case No. 716 (2751), except for the purpose of dismissing it. The temporary
restraining order of August 5, 1982 is hereby made permanent.

Teehankee, Makasiar, Aquino, Guerrero, Melencio-Herrera, Plana, Escolin Relova and Gutierrez, Jr.,
JJ., concur.

Concepcion Jr., J., took no part.

De Castro, J., is on leave.

Separate Opinions
ABAD SANTOS, J., concurring:

I concur and express the hope that Art. 217 should not undergo repeated amendments.

Separate Opinions

ABAD SANTOS, J., concurring:

I concur and express the hope that Art. 217 should not undergo repeated amendments.

CASE DIGEST:
Facts:

On 1982, the National Federation of Labor, certified by the Ministry of Labor as the sole exclusive
collective bargaining representative of the monthly paid employees of the respondent Zamboanga Wood
Products, Inc., charged the respondent firm before the same office of the Ministry of Labor for
underpayment. Petitioners declared a strike against the respondent, after the latter terminated the president
of the union. Respondent firm filed a complaint before the respondent Judge against the members and
officers of the union for obstruction and prayed for preliminary injunction and/or restraining order. The
petitioners assail the jurisdiction of the Court, pursuant to Article 217 of the Labor Code of the
Philippines, as amended, and filed a motion for dismissal of the complaint.

Issue:
Whether or not the respondent Judge has jurisdiction on Labor related cases.

Held:
The issuance of Presidential Decree No. 1691 and the enactment of Batas Pambansa Blg. 130,
made clear that the exclusive and original jurisdiction for damages would once again be vested in labor
arbiters. Hence, the respondent Judge is devoid of jurisdiction.

CASE #3

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION
G.R. No. 111107 January 10, 1997

LOEONARDO A. PAAT, in his capacity as Officer-in-Charge (OIC), Regional Executive Director

(RED), Region 2 and JOVITO LAYUGAN, JR., in his capacity as Community Environment and
Natural Resources Officer (CENRO), both of the Department of Environment and Natural
Resources (DENR), petitioners,
vs.
COURT OF APPEALS, HON. RICARDO A. BACULI in his capacity as Presiding Judge of
Branch 2, Regional Trial Court at Tuguegarao, Cagayan, and SPOUSES BIENVENIDO and
VICTORIA DE GUZMAN,respondents.

TORRES, JR., J.:

Without violating the principle of exhaustion of administrative remedies, may an action

for replevin prosper to recover a movable property which is the subject matter of an administrative
forfeiture proceeding in the Department of Environment and Natural Resources pursuant to Section 68-A
of P.D. 705, as amended, entitled The Revised Forestry Code of the Philippines?

Are the Secretary of DENR and his representatives empowered to confiscate and forfeit conveyances used
in transporting illegal forest products in favor of the government?

These are two fundamental questions presented before us for our resolution.

The controversy on hand had its incipiency on May 19, 1989 when the truck of private respondent
Victoria de Guzman while on its way to Bulacan from San Jose, Baggao, Cagayan, was seized by the
Department of Environment and Natural Resources (DENR, for brevity) personnel in Aritao, Nueva
Vizcaya because the driver could not produce the required documents for the forest products found
concealed in the truck. Petitioner Jovito Layugan, the Community Environment and Natural Resources
Officer (CENRO) in Aritao, Cagayan, issued on May 23, 1989 an order of confiscation of the truck and
gave the owner thereof fifteen (15) days within which to submit an explanation why the truck should not
be forfeited. Private respondents, however, failed to submit the required explanation. On June 22,
1989, 1 Regional Executive Director Rogelio Baggayan of DENR sustained petitioner Layugan's action of
confiscation and ordered the forfeiture of the truck invoking Section 68-A of Presidential Decree No. 705
as amended by Executive Order No. 277. Private respondents filed a letter of reconsideration dated June
28, 1989 of the June 22, 1989 order of Executive Director Baggayan, which was, however, denied in a
subsequent order of July 12, 1989. 2Subsequently, the case was brought by the petitioners to the Secretary
of DENR pursuant to private respondents' statement in their letter dated June 28, 1989 that in case their
letter for reconsideration would be denied then "this letter should be considered as an appeal to the
Secretary." 3 Pending resolution however of the appeal, a suit for replevin, docketed as Civil Case 4031,
was filed by the private respondents against petitioner Layugan and Executive Director Baggayan 4 with
the Regional Trial Court, Branch 2 of Cagayan, 5 which issued a writ ordering the return of the truck to
private respondents. 6Petitioner Layugan and Executive Director Baggayan filed a motion to dismiss with
the trial court contending, inter alia, that private respondents had no cause of action for their failure to
exhaust administrative remedies. The trial court denied the motion to dismiss in an order dated December
28, 1989. 7 Their motion for reconsideration having been likewise denied, a petition for certiorari was
filed by the petitioners with the respondent Court of Appeals which sustained the trial court's order ruling
that the question involved is purely a legal question. 8 Hence, this present petition, 9 with prayer for
temporary restraining order and/or preliminary injunction, seeking to reverse the decision of the
respondent Court of Appeals was filed by the petitioners on September 9, 1993. By virtue of the
Resolution dated September 27, 1993, 10 the prayer for the issuance of temporary restraining order of
petitioners was granted by this Court.

Invoking the doctrine of exhaustion of administrative remedies, petitioners aver that the trial court could
not legally entertain the suit for replevin because the truck was under administrative seizure proceedings
pursuant to Section 68-A of P.D. 705, as amended by E.O. 277. Private respondents, on the other hand,
would seek to avoid the operation of this principle asserting that the instant case falls within the exception
of the doctrine upon the justification that (1) due process was violated because they were not given the
chance to be heard, and (2) the seizure and forfeiture was unlawful on the grounds: (a) that the Secretary
of DENR and his representatives have no authority to confiscate and forfeit conveyances utilized in
transporting illegal forest products, and (b) that the truck as admitted by petitioners was not used in the
commission of the crime.

Upon a thorough and delicate scrutiny of the records and relevant jurisprudence on the matter, we are of
the opinion that the plea of petitioners for reversal is in order.

This Court in a long line of cases has consistently held that before a party is allowed to seek the
intervention of the court, it is a pre-condition that he should have availed of all the means of
administrative processes afforded him. Hence, if a remedy within the administrative machinery can still
be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that
comes within his jurisdiction then such remedy should be exhausted first before court's judicial power can
be sought, The premature invocation of court's intervention is fatal to one's cause of
action. 11 Accordingly, absent any finding of waiver or estoppel the case is susceptible of dismissal for
lack of cause of
action. 12 This doctrine of exhaustion of administrative remedies was not without its practical and legal
reasons, for one thing, availment of administrative remedy entails lesser expenses and provides for a
speedier disposition of controversies. It is no less true to state that the courts of justice for reasons of
comity and convenience will shy away from a dispute until the system of administrative redress has been
completed and complied with so as to give the administrative agency concerned every opportunity to
correct its error and to dispose of the case. However, we are not amiss to reiterate that the principle of
exhaustion of administrative remedies as tested by a battery of cases is not an ironclad rule. This doctrine
is a relative one and its flexibility is called upon by the peculiarity and uniqueness of the factual and
circumstantial settings of a case. Hence, it is disregarded (1) when there is a violation of due
process, 13 (2) when the issue involved is purely a legal question, 14 (3) when the administrative action is
patently illegal amounting to lack or excess of jurisdiction, 15 (4) when there is estoppel on the part of the
administrative agency concerned, 16 (5) when there is irreparable injury, 17 (6) when the respondent is a
department secretary whose acts as an alter ego of the President bears the implied and assumed approval
of the latter, 18 (7) when to require exhaustion of administrative remedies would be unreasonable, 19 (8)
when it would amount to a nullification of a claim, 20 (9) when the subject matter is a private land in land
case proceedings, 21 (10) when the rule does not provide a plain, speedy and adequate remedy, and (11)
when there are circumstances indicating the urgency of judicial intervention. 22

In the case at bar, there is no question that the controversy was pending before the Secretary of DENR
when it was forwarded to him following the denial by the petitioners of the motion for reconsideration of
private respondents through the order of July 12, 1989. In their letter of reconsideration dated June 28,
1989, 23 private respondents clearly recognize the presence of an administrative forum to which they seek
to avail, as they did avail, in the resolution of their case. The letter, reads, thus:

xxx xxx xxx

 If this motion for reconsideration does not merit your favorable action, then this letter
should be considered as an appeal to the
Secretary. 24

It was easy to perceive then that the private respondents looked up to the Secretary for the review and
disposition of their case. By appealing to him, they acknowledged the existence of an adequate and plain
remedy still available and open to them in the ordinary course of the law. Thus, they cannot now, without
violating the principle of exhaustion of administrative remedies, seek court's intervention by filing an
action for replevin for the grant of their relief during the pendency of an administrative proceedings.

Moreover, it is important to point out that the enforcement of forestry laws, rules and regulations and the
protection, development and management of forest lands fall within the primary and special
responsibilities of the Department of Environment and Natural Resources. By the very nature of its
function, the DENR should be given a free hand unperturbed by judicial intrusion to determine a
controversy which is well within its jurisdiction. The assumption by the trial court, therefore, of the
replevin suit filed by private respondents constitutes an unjustified encroachment into the domain of the
administrative agency's prerogative. The doctrine of primary jurisdiction does not warrant a court to
arrogate unto itself the authority to resolve a controversy the jurisdiction over which is initially lodged
with an administrative body of special competence. 25 In Felipe Ismael, Jr. and Co. vs. Deputy Executive
Secretary, 26 which was reiterated in the recent case of Concerned Officials of MWSS vs. Vasquez, 27 this
Court held:

Thus, while the administration grapples with the complex and multifarious problems
caused by unbriddled exploitation of these resources, the judiciary will stand clear. A
long line of cases establish the basic rule that the courts will not interfere in matters
which are addressed to the sound discretion of government agencies entrusted with the
regulation of activities coming under the special technical knowledge and training of such
agencies.

To sustain the claim of private respondents would in effect bring the instant controversy beyond the pale
of the principle of exhaustion of administrative remedies and fall within the ambit of excepted cases
heretofore stated. However, considering the circumstances prevailing in this case, we can not but rule out
these assertions of private respondents to be without merit. First, they argued that there was violation of
due process because they did not receive the May 23, 1989 order of confiscation of petitioner Layugan.
This contention has no leg to stand on. Due process does not necessarily mean or require a hearing, but
simply an opportunity or right to be heard. 28 One may be heard, not solely by verbal presentation but also,
and perhaps many times more creditably and practicable than oral argument, through pleadings. 29 In
administrative proceedings moreover, technical rules of procedure and evidence are not strictly applied;
administrative process cannot be fully equated with due process in its strict judicial sense. 30 Indeed,
deprivation of due process cannot be successfully invoked where a party was given the chance to be heard
on his motion for reconsideration, 31 as in the instant case, when private respondents were undisputedly
given the opportunity to present their side when they filed a letter of reconsideration dated June 28, 1989
which was, however, denied in an order of July 12, 1989 of Executive Director Baggayan, In Navarro III
vs. Damasco, 32 we ruled that :

The essence of due process is simply an opportunity to be heard, or as applied to

administrative proceedings, an opportunity to explain one's side or an opportunity to seek
a reconsideration of the action or ruling complained of. A formal or trial type hearing is
not at all times and in all instances essential. The requirements are satisfied when the
 parties are afforded fair and reasonable opportunity to explain their side of the
controversy at hand. What is frowned upon is the absolute lack of notice or hearing.

Second, private respondents imputed the patent illegality of seizure and forfeiture of the truck because the
administrative officers of the DENR allegedly have no power to perform these acts under the law. They
insisted that only the court is authorized to confiscate and forfeit conveyances used in transporting illegal
forest products as can be gleaned from the second paragraph of Section 68 of P.D. 705, as amended by
E.O. 277. The pertinent provision reads as follows:

Sec. 68. . . .

xxx xxx xxx

The court shall further order the confiscation in favor of the government of the timber or
any forest products cut, gathered, collected, removed, or possessed, as well as
the machinery, equipments,implements and tools illegaly [sic] used in the area where the
timber or forest products are found. (Emphasis ours)

A reading, however, of the law persuades us not to go along with private respondents' thinking not only
because the aforequoted provision apparently does not mention nor include "conveyances" that can be the
subject of confiscation by the courts, but to a large extent, due to the fact that private respondents'
interpretation of the subject provision unduly restricts the clear intention of the law and inevitably reduces
the other provision of Section 68-A, which is quoted herein below:

Sec. 68-A. Administrative Authority of the Department or His Duly Authorized

Representative To Order Confiscation. In all cases of violation of this Code or other
forest laws, rules and regulations, the Department Head or his duly authorized
representative, may order the confiscation of any forest products illegally cut, gathered,
removed, or possessed or abandoned, and all conveyances used either by land, water or
air in the commission of the offense and to dispose of the same in accordance with
pertinent laws, regulations and policies on the matter. (Emphasis ours)

It is, thus, clear from the foregoing provision that the Secretary and his duly authorized representatives are
given the authority to confiscate and forfeit any conveyances utilized in violating the Code or other forest
laws, rules and regulations. The phrase "to dispose of the same" is broad enough to cover the act of
forfeiting conveyances in favor of the government. The only limitation is that it should be made "in
accordance with pertinent laws, regulations or policies on the matter." In the construction of statutes, it
must be read in such a way as to give effect to the purpose projected in the statute. 33 Statutes should be
construed in the light of the object to be achieved and the evil or mischief to be suppressed, and they
should be given such construction as will advance the object, suppress the mischief, and secure the
benefits intended. 34 In this wise, the observation of the Solicitor General is significant, thus:

But precisely because of the need to make forestry laws "more responsive to present
situations and realities" and in view of the "urgency to conserve the remaining resources
of the country," that the government opted to add Section 68-A. This amendatory
provision is an administrative remedy totally separate and distinct from criminal
proceedings. More than anything else, it is intended to supplant the inadequacies that
characterize enforcement of forestry laws through criminal actions. The preamble of EO
277-the law that added Section 68-A to PD 705-is most revealing:
 "WHEREAS, there is an urgency to conserve the remaining forest
resources of the country for the benefit and welfare of the present and
future generations of Filipinos;

WHEREAS, our forest resources may be effectively conserved and

protected through the vigilant enforcement and implementation of our
forestry laws, rules and regulations;

WHEREAS, the implementation of our forestry laws suffers from

technical difficulties, due to certain inadequacies in the penal provisions
of the Revised Forestry Code of the Philippines; and

WHEREAS, to overcome this difficulties, there is a need to penalize

certain acts more responsive to present situations and realities;"

It is interesting to note that Section 68-A is a new provision authorizing the DENR to
confiscate, not only "conveyances," but forest products as well. On the other
hand, confiscation of forest products by the "court" in a criminal action has long been
provided for in Section 68. If as private respondents insist, the power on confiscation
cannot be exercised except only through the court under Section 68, then Section 68-A
would have no Purpose at all. Simply put, Section 68-A would not have provided any
solution to the problem perceived in EO 277, supra. 35

Private respondents, likewise, contend that the seizure was illegal because the petitioners themselves
admitted in the Order dated July 12, 1989 of Executive Director Baggayan that the truck of private
respondents was not used in the commission of the crime. This order, a copy of which was given to and
received by the counsel of private respondents, reads in part, viz.:

. . . while it is true that the truck of your client was not used by her in the commission of
the crime, we uphold your claim that the truck owner is not liable for the crime and in no
case could a criminal case be filed against her as provided under Article 309 and 310 of
the Revised Penal Code. . . 36

We observed that private respondents misread the content of the aforestated order and obviously
misinterpreted the intention of petitioners. What is contemplated by the petitioners when they stated that
the truck "was not used in the commission of the crime" is that it was not used in the commission of the
crime of theft, hence, in no case can a criminal action be filed against the owner thereof for violation of
Article 309 and 310 of the Revised Penal Code. Petitioners did not eliminate the possibility that the truck
was being used in the commission of another crime, that is, the breach of Section 68 of P.D. 705 as
amended by E.O. 277. In the same order of July 12, 1989, petitioners pointed out:

. . . However, under Section 68 of P.D. 705 as amended and further amended by

Executive Order No. 277 specifically provides for the confiscation of the conveyance
used in the transport of forest products not covered by the required legal documents. She
may not have been involved in the cutting and gathering of the product in question but
the fact that she accepted the goods for a fee or fare the same is therefor liable. . . 37

Private respondents, however, contended that there is no crime defined and punishable under Section 68
other than qualified theft, so that, when petitioners admitted in the July 12, 1989 order that private
respondents could not be charged for theft as provided for under Articles 309 and 310 of the Revised
Penal Code, then necessarily private respondents could not have committed an act constituting a crime
under Section 68. We disagree. For clarity, the provision of Section 68 of P.D. 705 before its amendment
by E.O. 277 and the provision of Section 1 of E.O. No. 277 amending the aforementioned Section 68 are
reproduced herein, thus:

Sec. 68. Cutting, gathering and/or collecting timber or other products without license.
Any person who shall cut, gather, collect, or remove timber or other forest products from
any forest land, or timber from alienable and disposable public lands, or from private
lands, without any authority under a license agreement, lease, license or permit, shall
be guilty of qualified theft as defined and punished under Articles 309 and 310 of the
Revised Penal Code . . . (Emphasis ours; Section 68, P.D. 705 before its amendment by
E.O. 277)

Sec. 1. Section 68 of Presidential Decree No. 705, as amended, is hereby amended to read
as follows:

Sec. 68. Cutting, gathering and/or collecting timber or other forest

products without license. Any person who
shall cut, gather, collect, remove timber or other forest products from any
forest land, or timber from alienable or disposable public land, or from
private land, without any authority, or possess timber or other forest
products without the legal documents as required under existing forest
laws and regulations, shall bepunished with the penalties imposed under
Articles 309 and 310 of the Revised Penal Code . . . (Emphasis ours;
Section 1, E.O. No. 277 amending Section 68, P.D. 705 as amended)

With the introduction of Executive Order No. 277 amending Section 68 of P.D. 705, the act of cutting,
gathering, collecting, removing, or possessing forest products without authority constitutes a distinct
offense independent now from the crime of theft under Articles 309 and 310 of the Revised Penal Code,
but the penalty to be imposed is that provided for under Article 309 and 310 of the Revised Penal Code.
This is clear from the language of Executive Order No. 277 when it eliminated the phrase "shall be guilty
of qualified theft as defined and punished under Articles 309 and 310 of the Revised Penal Code" and
inserted the words "shall be punished with the penalties imposed under Article 309 and 310 of the
Revised Penal Code". When the statute is clear and explicit, there is hardly room for any extended court
ratiocination or rationalization of the law. 38

From the foregoing disquisition, it is clear that a suit for replevin can not be sustained against the
petitioners for the subject truck taken and retained by them for administrative forfeiture proceedings in
pursuant to Section 68-A of the P.D. 705, as amended. Dismissal of the replevin suit for lack of cause of
action in view of the private respondents' failure to exhaust administrative remedies should have been the
proper course of action by the lower court instead of assuming jurisdiction over the case and consequently
issuing the writ ordering the return of the truck. Exhaustion of the remedies in the administrative forum,
being a condition precedent prior to one's recourse to the courts and more importantly, being an element
of private respondents' right of action, is too significant to be waylaid by the lower court.

It is worth stressing at this point, that a suit for replevin is founded solely on the claim that the defendant
wrongfully withholds the property sought to be recovered. It lies to recover possession of personal
chattels that are unlawfully detained. 39 "To detain" is defined as to mean "to hold or keep in
custody," 40 and it has been held that there is tortious taking whenever there is an unlawful meddling with
the property, or an exercise or claim of dominion over it, without any pretense of authority or right; this,
without manual seizing of the property is sufficient. 41 Under the Rules of Court, it is indispensable in
replevin proceeding that the plaintiff must show by his own affidavit that he is entitled to the possession
of property, that the property is wrongfully detained by the defendant, alleging the cause of detention, that
the same has not been taken for tax assessment, or seized under execution, or attachment, or if so seized,
that it is exempt from such seizure, and the actual value of the property. 42 Private respondents miserably
failed to convince this Court that a wrongful detention of the subject truck obtains in the instant case. It
should be noted that the truck was seized by the petitioners because it was transporting forest products
without the required permit of the DENR in manifest contravention of Section 68 of P.D. 705 as amended
by E.O 277. Section 68-A of P.D. 705, as amended, unquestionably warrants the confiscation as well as
the disposition by the Secretary of DENR or his duly authorized representatives of the conveyances used
in violating the provision of forestry laws. Evidently, the continued possession or detention of the truck
by the petitioners for administrative forfeiture proceeding is legally permissible, hence, no wrongful
detention exists in the case at bar.

Moreover, the suit for replevin is never intended as a procedural tool to question the orders of
confiscation and forfeiture issued by the DENR in pursuance to the authority given under P.D. 705, as
amended. Section 8 of the said law is explicit that actions taken by the Director of the Bureau of Forest
Development concerning the enforcement of the provisions of the said law are subject to review by the
Secretary of DENR and that courts may not review the decisions of the Secretary except through a special
civil action for certiorari or prohibition. It reads:

Sec. 8. REVIEW All actions and decisions of the Director are subject to review, motu
propio or upon appeal of any person aggrieved thereby, by the Department Head whose
decision shall be final and executory after the lapse of thirty (30) days from the receipt of
the aggrieved party of said decision, unless appealed to the President in accordance with
Executive Order No. 19, Series of 1966. The Decision of the Department Head may not
be reviewed by the courts except through a special civil action for certiorari or
prohibition.

WHEREFORE, the Petition is GRANTED; the Decision of the respondent Court of Appeals dated
October 16, 1991 and its Resolution dated July 14, 1992 are hereby SET ASIDE AND REVERSED; the
Restraining Order promulgated on September 27, 1993 is hereby made permanent; and the Secretary of
DENR is directed to resolve the controversy with utmost dispatch.

SO ORDERED.

CASE DIGEST

FACTS:

On May 19, 1989 when the truck of private respondent Victoria de Guzman while on its way to Bulacan
from San Jose, Baggao, Cagayan, was seized by the Department of Environment and Natural Resources
(DENR, for brevity) personnel in Aritao, Nueva Vizcaya because the driver could not produce the
required documents for the forest products found concealed in the truck.

LOWER COURTS:

* CENRO: Petitioner Jovito Layugan, the Community Environment and Natural Resources Officer
(CENRO) in Aritao, Cagayan, issued on May 23, 1989 an order of confiscation of the truck and gave the
owner thereof fifteen (15) days within which to submit an explanation why the truck should not be
forfeited. Private respondents, however, failed to submit the required explanation.

* RED- DENR: On June 22, 1989,i[1] Regional Executive Director Rogelio Baggayan of DENR
sustained petitioner Layugan's action of confiscation and ordered the forfeiture of the truck invoking
Section 68-A of Presidential Decree No. 705 as amended by Executive Order No. 277. Private
respondents filed a letter of reconsideration dated June 28, 1989 of the June 22, 1989 order of Executive
Director Baggayan, which was, however, denied in a subsequent order of July 12, 1989.ii[2]

* DENR-SECRETARY (Pending resolution)

* RTC (action for replevin): denied motion to dismiss by Paat (DENR-RED)

* CA (review): denied, has legal questions involved.

ISSUES & RULINGS:

(1) Without violating the principle of exhaustion of administrative remedies, may an action for replevin
prosper to recover a movable property which is the subject matter of an administrative forfeiture
proceeding in the Department of Environment and Natural Resources pursuant to Section 68-A of P. D.
705, as amended, entitled The Revised Forestry Code of the Philippines?

NO, before a party is allowed to seek the intervention of the court, it is a pre-condition that he should
have availed of all the means of administrative processes afforded him. Hence, if a remedy within the
administrative machinery can still be resorted to by giving the administrative officer concerned every
opportunity to decide on a matter that comes within his jurisdiction then such remedy should be
exhausted first before court's judicial power can be sought. The premature invocation of court's
intervention is fatal to one's cause of action.

(2) Are the Secretary of DENR and his representatives empowered to confiscate and forfeit conveyances
used in transporting illegal forest products in favor of the government?

YES.

SECTION 68-A. Administrative Authority of the Department or His Duly Authorized Representative To
Order Confiscation. In all cases of violation of this Code or other forest laws, rules and regulations, the
Department Head or his duly authorized representative, may order the confiscation of any forest products
illegally cut, gathered, removed, or possessed or abandoned, and all conveyances used either by land,
water or air in the commission of the offense and to dispose of the same in accordance with pertinent
laws, regulations and policies on the matter. (Underline ours)

It is, thus, clear from the foregoing provision that the Secretary and his duly authorized representatives are
given the authority to confiscate and forfeit any conveyances utilized in violating the Code or other forest
laws, rules and regulations. The phrase to dispose of the same is broad enough to cover the act of
forfeiting conveyances in favor of the government. The only limitation is that it should be made in
accordance with pertinent laws, regulations or policies on the matter.

SECTION 68. xxx

xxx
The court shall further order the confiscation in favor of the government of the timber or any forest
products cut, gathered, collected, removed, or possessed, as well as the machinery, equipments,
implements and tools illegaly [sic] used in the area where the timber or forest products are found.
(Underline ours)

A reading, however, of the law persuades us not to go along with private respondents' thinking not only
because the aforequoted provision apparently does not mention nor include conveyances that can be the
subject of confiscation by the courts, but to a large extent, due to the fact that private respondents'
interpretation of the subject provision unduly restricts the clear intention of the law and inevitably
reduces the other provision of Section 68-A.

It is interesting to note that Section 68-A is a new provision authorizing the DENR to confiscate, not only
conveyances,' but forest products as well. On the other hand, confiscation of forest products by the
court' in a criminal action has long been provided for in Section 68. If as private respondents insist, the
power on confiscation cannot be exercised except only through the court under Section 68, then Section
68-A would have no purpose at all.

it is clear that a suit for replevin can not be sustained against the petitioners for the subject truck taken and
retained by them for administrative forfeiture proceedings in pursuant to Section 68-A of the P. D. 705, as
amended.

Section 68-A of P.D. 705, as amended, unquestionably warrants the confiscation as well as the disposition
by the Secretary of DENR or his duly authorized representatives of the conveyances used in violating the
provision of forestry laws. Evidently, the continued possession or detention of the truck by the petitioners
for administrative forfeiture proceeding is legally permissible, hence , no wrongful detention exists in the
case at bar.

OBITER DICTA:

(1) the principle of exhaustion of administrative remedies as tested by a battery of cases is not an ironclad
rule. This doctrine is a relative one and its flexibility is called upon by the peculiarity and uniqueness of
the factual and circumstantial settings of a case. Hence, it is disregarded

(1) when there is a violation of due process,

(2) when the issue involved is purely a legal question,
(3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction,
(4) when there is estoppel on the part of the administrative agency concerned,
(5) when there is irreparable injury,
(6) when the respondent is a department secretary whose acts as an alter ego of the President bears the
implied and assumed approval of the latter,
(7) when to require exhaustion of administrative remedies would be unreasonable,
(8) when it would amount to a nullification of a claim,
(9) when the subject matter is a private land in land case proceedings,
(10) when the rule does not provide a plain, speedy and adequate remedy, and
(11) when there are circumstances indicating the urgency of judicial intervention.

(2) the enforcement of forestry laws, rules and regulations and the protection, development and
management of forest lands fall within the primary and special responsibilities of the Department of
Environment and Natural Resources.
(3) The essence of due process is simply an opportunity to be heard, or as applied to administrative
proceedings, an opportunity to explain one's side or an opportunity to seek a reconsideration of the action
or ruling complained of. A formal or trial type hearing is not at all times and in all instances essential. The
requirements are satisfied when the parties are afforded fair and reasonable opportunity to explain their
side of the controversy at hand. What is frowned upon is the absolute lack of notice or hearing.
Issue: W/ON the trial court has jurisdiction?

Held. No. This Court in a long line of cases has consistently held that before a party is allowed to seek the
intervention of the court, it is a pre-condition that he should have availed of all the means of
administrative processes afforded him. Hence, if a remedy within the administrative machinery can still
be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that
comes within his jurisdiction then such remedy should be exhausted first before courts judicial power can
be sought. The premature invocation of courts intervention is fatal to ones cause of action.

CASE #: 4

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-22301 August 30, 1967

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARIO MAPA Y MAPULONG, defendant-appellant.

Francisco P. Cabigao for defendant-appellant.

Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General F. R. Rosete and Solicitor O.
C. Hernandez for plaintiff-appellee.

FERNANDO, J.:

The sole question in this appeal from a judgment of conviction by the lower court is whether or not the
appointment to and holding of the position of a secret agent to the provincial governor would constitute a
sufficient defense to a prosecution for the crime of illegal possession of firearm and ammunition. We hold
that it does not.

The accused in this case was indicted for the above offense in an information dated August 14, 1962
reading as follows: "The undersized accuses MARIO MAPA Y MAPULONG of a violation of Section
878 in connection with Section 2692 of the Revised Administrative Code, as amended by Commonwealth
Act No. 56 and as further amended by Republic Act No. 4, committed as follows: That on or about the
13th day of August, 1962, in the City of Manila, Philippines, the said accused did then and there wilfully
and unlawfully have in his possession and under his custody and control one home-made revolver
(Paltik), Cal. 22, without serial number, with six (6) rounds of ammunition, without first having secured
the necessary license or permit therefor from the corresponding authorities. Contrary to law."
When the case was called for hearing on September 3, 1963, the lower court at the outset asked the
counsel for the accused: "May counsel stipulate that the accused was found in possession of the gun
involved in this case, that he has neither a permit or license to possess the same and that we can submit
the same on a question of law whether or not an agent of the governor can hold a firearm without a permit
issued by the Philippine Constabulary." After counsel sought from the fiscal an assurance that he would
not question the authenticity of his exhibits, the understanding being that only a question of law would be
submitted for decision, he explicitly specified such question to be "whether or not a secret agent is not
required to get a license for his firearm."

Upon the lower court stating that the fiscal should examine the document so that he could pass on their
authenticity, the fiscal asked the following question: "Does the accused admit that this pistol cal. 22
revolver with six rounds of ammunition mentioned in the information was found in his possession on
August 13, 1962, in the City of Manila without first having secured the necessary license or permit
thereof from the corresponding authority?" The accused, now the appellant, answered categorically: "Yes,
Your Honor." Upon which, the lower court made a statement: "The accused admits, Yes, and his counsel
Atty. Cabigao also affirms that the accused admits."

Forthwith, the fiscal announced that he was "willing to submit the same for decision." Counsel for the
accused on his part presented four (4) exhibits consisting of his appointment "as secret agent of the Hon.
Feliciano Leviste," then Governor of Batangas, dated June 2, 1962;1 another document likewise issued by
Gov. Leviste also addressed to the accused directing him to proceed to Manila, Pasay and Quezon City on
a confidential mission;2the oath of office of the accused as such secret agent,3 a certificate dated March
11, 1963, to the effect that the accused "is a secret agent" of Gov. Leviste.4 Counsel for the accused then
stated that with the presentation of the above exhibits he was "willing to submit the case on the question
of whether or not a secret agent duly appointed and qualified as such of the provincial governor is exempt
from the requirement of having a license of firearm." The exhibits were admitted and the parties were
given time to file their respective memoranda.1wph1.t

Thereafter on November 27, 1963, the lower court rendered a decision convicting the accused "of the
crime of illegal possession of firearms and sentenced to an indeterminate penalty of from one year and
one day to two years and to pay the costs. The firearm and ammunition confiscated from him are forfeited
in favor of the Government."

The only question being one of law, the appeal was taken to this Court. The decision must be affirmed.

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."5 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."6

The law cannot be any clearer. No provision is made for a secret agent. As such he is not exempt. Our
task is equally clear. The first and fundamental duty of courts is to apply the law. "Construction and
interpretation come only after it has been demonstrated that application is impossible or inadequate
without them."7 The conviction of the accused must stand. It cannot be set aside.
Accused however would rely on People v. Macarandang,8 where a secret agent was acquitted on appeal
on the assumption that the appointment "of the accused as a secret agent to assist in the maintenance of
peace and order campaigns and detection of crimes, sufficiently put him within the category of a "peace
officer" equivalent even to a member of the municipal police expressly covered by section 879." Such
reliance is misplaced. It is not within the power of this Court to set aside the clear and explicit mandate of
a statutory provision. To the extent therefore that this decision conflicts with what was held in People v.
Macarandang, it no longer speaks with authority.

Wherefore, the judgment appealed from is affirmed.

CASE DIGEST

Facts:

The accused was convicted in violation of Sec. 878 in connection to Sec. 2692 of the Revised
Administrative Code as amended by Commonwealth Act No. 56 and further amended by R.A. 4. On
August 13, 1962, the accused was discovered to have in its possession and control a home-made revolver
cal. 22 with no license permit. In the court proceeding, the accused admitted that he owns the gun and
affirmed that it has no license. The accused further stated that he is a secret agent appointed by Gov.
Leviste of Batangas and showed evidences of appointment. In his defense, the accused presented the case
of People vs. Macarandang, stating that he must acquitted because he is a secret agent and which may
qualify into peace officers equivalent to municipal police which is covered by Art. 879.

Issue:

Whether or not holding a position of secret agent of the Governor is a proper defense to illegal possession
of firearms.

Ruling:

The Supreme Court in its decision affirmed the lower courts decision. It stated that 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." 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.
The Court construed that there is no provision for the secret agent; including it in the list therefore the
accused is not exempted.

CASE # 5

Republic of the Philippines

SUPREME COURT
Manila
 SECOND DIVISION

G.R. No. L-34568 March 28, 1988

RODERICK DAOANG, and ROMMEL DAOANG, assisted by their father, ROMEO

DAOANG, petitioners,
vs.
THE MUNICIPAL JUDGE, SAN NICOLAS, ILOCOS NORTE, ANTERO AGONOY and
AMANDA RAMOS-AGONOY, respondents.

PADILLA, J.:

This is a petition for review on certiorari of the decision, dated 30 June 1971, rendered by the respondent
judge *in Spec. Proc. No. 37 of Municipal Court of San Nicolas, Ilocos Norte, entitled: "In re Adoption of
the Minors Quirino Bonilla and Wilson Marcos; Antero Agonoy and Amanda R. Agonoy, petitioners",
the dispositive part of which reads, as follows:

Wherefore, Court renders judgment declaring that henceforth Quirino Bonilla and Wilson
Marcos be, to all legitimate intents and purposes, the children by adoption of the joint
petitioners Antero Agonoy and Amanda R. Agonoy and that the former be freed from
legal obedience and maintenance by their respective parents, Miguel Bonilla and
Laureana Agonoy for Quirino Bonilla and Modesto Marcos and Benjamina Gonzales for
Wilson Marcos and their family names 'Bonilla' and 'Marcos' be changed with "Agonoy",
which is the family name of the petitioners.

Successional rights of the children and that of their adopting parents shall be governed by
the pertinent provisions of the New Civil Code.

Let copy of this decision be furnished and entered into the records of the Local Civil
Registry of San Nicolas, Ilocos Norte, for its legal effects at the expense of the
petitioners. 1

The undisputed facts of the case are as follows:

On 23 March 1971, the respondent spouses Antero and Amanda Agonoy filed a petition with the
Municipal Court of San Nicolas, Ilocos Norte, seeking the adoption of the minors Quirino Bonilla and
Wilson Marcos. The case, entitled: "In re Adoption of the Minors Quirino Bonilla and Wilson Marcos,
Antero Agonoy and Amanda Ramos-Agonoy, petitioners", was docketed therein as Spec. Proc. No. 37. 2

The petition was set for hearing on 24 April 1971 and notices thereof were caused to be served upon the
office of the Solicitor General and ordered published in the ILOCOS TIMES, a weekly newspaper of
general circulation in the province of Ilocos Norte, with editorial offices in Laoag City. 3

On 22 April 1971, the minors Roderick and Rommel Daoang, assisted by their father and guardian ad
litem, the petitioners herein, filed an opposition to the aforementioned petition for adoption, claiming that
the spouses Antero and Amanda Agonoy had a legitimate daughter named Estrella Agonoy, oppositors'
mother, who died on 1 March 1971, and therefore, said spouses were disqualified to adopt under Art. 335
of the Civil Code. 4

After the required publication of notice had been accomplished, evidence was presented. Thereafter, the
Municipal Court of San Nicolas, Ilocos Norte rendred its decision, granting the petition for adoption. 5

Hence, the present recourse by the petitioners (oppositors in the lower court).

The sole issue for consideration is one of law and it is whether or not the respondent spouses Antero
Agonoy and Amanda Ramos-Agonoy are disqualified to adopt under paragraph (1), Art. 335 of the Civil
Code.

The pertinent provision of law reads, as follows:

Art. 335. The following cannot adopt:

(1) Those who have legitimate, legitimated, acknowledged natural children, or children
by legal fiction;

xxx xxx xxx

In overruling the opposition of the herein petitioners, the respondents judge held that "to add
grandchildren in this article where no grandchil is included would violate to (sic) the legal maxim that
what is expressly included would naturally exclude what is not included".

But, it is contended by the petitioners, citing the case of In re Adoption of Millendez, 6 that the adoption of
Quirino Bonilla and Wilson Marcos would not only introduce a foreign element into the family unit, but
would result in the reduction of their legititimes. It would also produce an indirect, permanent and
irrevocable disinheritance which is contrary to the policy of the law that a subsequent reconciliation
between the offender and the offended person deprives the latter of the right to disinherit and renders
ineffectual any disinheritance that may have been made.

We find, however, that the words used in paragraph (1) of Art. 335 of the Civil Code, in enumerating the
persons who cannot adopt, are clear and unambiguous. The children mentioned therein have a clearly
defined meaning in law and, as pointed out by the respondent judge, do not include grandchildren.

Well known is the rule of statutory construction to the effect that a statute clear and unambiguous on its
face need not be interpreted; stated otherwise, the rule is that only statutes with an ambiguous or doubtful
meaning may be the subject of statutory construction. 7

Besides, it appears that the legislator, in enacting the Civil Code of the Philippines, obviously intended
that only those persons who have certain classes of children, are disqualified to adopt. The Civil Code of
Spain, which was once in force in the Philippines, and which served as the pattern for the Civil Code of
the Philippines, in its Article 174, disqualified persons who have legitimate or
legitimated descendants from adopting. Under this article, the spouses Antero and Amanda Agonoy
would have been disqualified to adopt as they have legitimate grandchildren, the petitioners herein. But,
when the Civil Code of the Philippines was adopted, the word "descendants" was changed to "children",
in paragraph (1) of Article 335.
Adoption used to be for the benefit of the adoptor. It was intended to afford to persons who have no child
of their own the consolation of having one, by creating through legal fiction, the relation of paternity and
filiation where none exists by blood relationship. 8 The present tendency, however, is geared more
towards the promotion of the welfare of the child and the enhancement of his opportunities for a useful
and happy life, and every intendment is sustained to promote that objective. 9 Under the law now in force,
having legitimate, legitimated, acknowledged natural children, or children by legal fiction, is no longer a
ground for disqualification to adopt. 10

WHEREFORE, the petition is DENIED. The judgment of the Municipal Court of San Nicolas, Ilocos
Norte in Spec. Proc. No. 37 is AFFIRMED. Without pronouncement as to costs in this instance.

SO ORDERED.

CASE DIGEST

Facts:
Petitioners are grandchildren of private respondents Agonoy. Private respondents filed a petition
before the MTC of San Nicolas seeking adoption of two minors. Petitioners filed an opposition to the
adoption invoking the provisions of the Civil Code. That the respondents have a legitimate child, the
mother of the petitioners, now deceased, as such they are not qualified to adopt as per Article 335 of the
aforesaid Code. The petition for adoption was granted. Hence, this petition.

Issue:
Whether or not private respondents are disqualified to adopt under paragraph 1 of Art. 335.

Held:
No. The provision invoked by the petitioners is clear and unambiguous. Therefore, no construction
or interpretation should be made. To add grandchildren in this article where no such word is included
would be in violation to the legal maxim that what is expressly included would naturally exclude what is
not included.

CASE # 6

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 123169 November 4, 1996

DANILO E. PARAS, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.
 RESOLUTION

FRANCISCO, J.:

Petitioner Danilo E. Paras is the incumbent Punong Barangay of Pula, Cabanatuan City who won during
the last regular barangay election in 1994. A petition for his recall as Punong Barangay was filed by the
registered voters of the barangay. Acting on the petition for recall, public respondent Commission on
Elections (COMELEC) resolved to approve the petition, scheduled the petition signing on October 14,
1995, and set the recall election on November 13,
1995. 1 At least 29.30% of the registered voters signed the petition, well above the 25% requirement
provided by law. The COMELEC, however, deferred the recall election in view of petitioner's opposition.
On December 6, 1995, the COMELEC set anew the recall election, this time on December 16, 1995. To
prevent the holding of the recall election, petitioner filed before the Regional Trial Court of Cabanatuan
City a petition for injunction, docketed as SP Civil Action No. 2254-AF, with the trial court issuing a
temporary restraining order. After conducting a summary hearing, the trial court lifted the restraining
order, dismissed the petition and required petitioner and his counsel to explain why they should not be
cited for contempt for misrepresenting that the barangay recall election was without COMELEC
approval. 2

In a resolution dated January 5, 1996, the COMELEC, for the third time, re-scheduled the recall election
an January 13, 1996; hence, the instant petition for certiorari with urgent prayer for injunction. On
January 12, 1996, the Court issued a temporary restraining order and required the Office of the Solicitor
General, in behalf of public respondent, to comment on the petition. In view of the Office of the Solicitor
General's manifestation maintaining an opinion adverse to that of the COMELEC, the latter through its
law department filed the required comment. Petitioner thereafter filed a reply. 3

Petitioner's argument is simple and to the point. Citing Section 74 (b) of Republic Act No. 7160,
otherwise known as the Local Government Code, which states that "no recall shall take place within one
(1) year from the date of the official's assumption to office or one (1) year immediately preceding a
regular local election", petitioner insists that the scheduled January 13, 1996 recall election is now barred
as the Sangguniang Kabataan (SK) election was set by Republic Act No. 7808 on the first Monday of
May 1996, and every three years thereafter. In support thereof, petitioner cites Associated Labor Union
v. Letrondo-Montejo, 237 SCRA 621, where the Court considered the SK election as a regular local
election. Petitioner maintains that as the SK election is a regular local election, hence no recall election
can be had for barely four months separate the SK election from the recall election. We do not agree.

The subject provision of the Local Government Code provides:

Sec. 74. Limitations on Recall. (a) Any elective local official may be the subject of a
recall election only once during his term of office for loss of confidence.

(b) No recall shall take place within one (1) year from the date of the official's
assumption to office or one (1) year immediately preceding a regular local election.

[Emphasis added]

It is a rule in statutory construction that every part of the statute must be interpreted with reference to the
context,i.e., that every part of the statute must be considered together with the other parts, and kept
subservient to the general intent of the whole enactment. 4 The evident intent of Section 74 is to subject an
elective local official to recall election once during his term of office. Paragraph (b) construed together
with paragraph (a) merely designates the period when such elective local official may be subject of a
recall election, that is, during the second year of his term of office. Thus, subscribing to petitioner's
interpretation of the phrase regular local election to include the SK election will unduly circumscribe the
novel provision of the Local Government Code on recall, a mode of removal of public officers by
initiation of the people before the end of his term. And if the SK election which is set by R.A No. 7808 to
be held every three years from May 1996 were to be deemed within the purview of the phrase "regular
local election", as erroneously insisted by petitioner, then no recall election can be conducted rendering
inutile the recall provision of the Local Government Code.

In the interpretation of a statute, the Court should start with the assumption that the legislature intended to
enact an effective law, and the legislature is not presumed to have done a vain thing in the enactment of a
statute. 5 An interpretation should, if possible, be avoided under which a statute or provision being
construed is defeated, or as otherwise expressed, nullified, destroyed, emasculated, repealed, explained
away, or rendered insignificant, meaningless, inoperative or nugatory. 6

It is likewise a basic precept in statutory construction that a statute should be interpreted in harmony with
the Constitution. 7 Thus, the interpretation of Section 74 of the Local Government Code, specifically
paragraph (b) thereof, should not be in conflict with the Constitutional mandate of Section 3 of Article X
of the Constitution to "enact a local government code which shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization with effective
mechanism of recall, initiative, and referendum . . . ."

Moreover, petitioner's too literal interpretation of the law leads to absurdity which we cannot
countenance. Thus, in a case, the Court made the following admonition:

We admonish against a too-literal reading of the law as this is apt to constrict rather than
fulfill its purpose and defeat the intention of its authors. That intention is usually found
not in "the letter that killeth but in the spirit that vivifieth". . . 8

The spirit, rather than the letter of a law determines its construction; hence, a statute, as in this
case, must be read according to its spirit and intent.

Finally, recall election is potentially disruptive of the normal working of the local government unit
necessitating additional expenses, hence the prohibition against the conduct of recall election one year
immediately preceding the regular local election. The proscription is due to the proximity of the next
regular election for the office of the local elective official concerned. The electorate could choose the
official's replacement in the said election who certainly has a longer tenure in office than a successor
elected through a recall election. It would, therefore, be more in keeping with the intent of the recall
provision of the Code to construe regular local election as one referring to an election where the office
held by the local elective official sought to be recalled will be contested and be filled by the electorate.

Nevertheless, recall at this time is no longer possible because of the limitation stated under Section 74 (b)
of the Code considering that the next regular election involving the barangay office concerned is barely
seven (7) months away, the same having been scheduled on May 1997. 9

ACCORDINGLY, the petition is hereby dismissed for having become moot and academic. The
temporary restraining order issued by the Court on January 12, 1996, enjoining the recall election should
be as it is hereby made permanent.
SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur.

Separate Opinions

DAVIDE, JR., J., concurring:

I concur with Mr. Justice Ricardo J. Francisco in his ponencia.

However, I wish to add another reason as to why the SK election cannot be considered a "regular local
election" for purposes of recall under Section 74 of the Local Government Code of 1991.

The term "regular local election" must be confined to the regular election of elective local officials, as
distinguished from the regular election of national officials. The elective national officials are the
President, Vice-President, Senators and Congressmen. The elective local officials are Provincial
Governors, Vice-Governors of provinces, Mayors and Vice-Mayors of cities and municipalities, Members
of the Sanggunians of provinces, cities and municipalities, punong barangays and members of
the sangguniang barangays, and the elective regional officials of the Autonomous Region of Muslim
Mindanao. These are the only local elective officials deemed recognized by Section 2(2) of Article IX-C
of the Constitution, which provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

xxx xxx xxx

(2) Exercise exclusive original jurisdiction over all contests relating to the elections,
returns, and qualifications of all elective regional, provincial, and city officials, and
appellate jurisdiction over all contests involving elective municipal officials decided by
trial courts of general jurisdiction, or involving elective barangay officials decided by
trial courts of limited jurisdiction.

A regular election, whether national or local, can only refer to an election participated in by those who
possess the right of suffrage, are not otherwise disqualified by law, and who are registered voters. One of
the requirements for the exercise of suffrage under Section 1, Article V of the Constitution is that the
person must be at least 18 years of age, and one requisite before he can vote is that he be a registered
voter pursuant to the rules on registration prescribed in the Omnibus Election Code (Section 113-118).

Under the law, the SK includes the youth with ages ranging from 15 to 21 (Sec. 424, Local Government
Code of 1991). Accordingly, they include many who are not qualified to vote in a regular election, viz.,
those from ages 15 to less than 18. In no manner then may SK elections be considered a regular election
(whether national or local).

Indeed the Sangguniang Kabataan is nothing more than a youth organization, and although fully
recognized in the Local Government Code and vested with certain powers and functions, its elective
officials have not attained the status of local elective officials. So, in Mercado vs. Board of Election
Supervisors (243 SCRA 422 [1995]), this Court ruled that although the SK Chairman is an ex-
officio member of the sangguniang barangay an elective body that fact does not make him "an
elective barangay official," since the law specifically provides who comprise the elective officials of
the sangguniang barangay, viz., the punong barangay and the seven (7) regularsangguniang
barangay members elected at large by those qualified to exercise the right of suffrage under Article V of
the Constitution, who are likewise registered voters of the barangay. This shows further that the SK
election is not a regular local election for purposes of recall under Section 74 of the Local Government
Code.

Separate Opinions

DAVIDE, JR., J., concurring:

I concur with Mr. Justice Ricardo J. Francisco in his ponencia.

However, I wish to add another reason as to why the SK election cannot be considered a "regular local
election" for purposes of recall under Section 74 of the Local Government Code of 1991.

The term "regular local election" must be confined to the regular election of elective local officials, as
distinguished from the regular election of national officials. The elective national officials are the
President, Vice-President, Senators and Congressmen. The elective local officials are Provincial
Governors, Vice-Governors of provinces, Mayors and Vice-Mayors of cities and municipalities, Members
of the Sanggunians of provinces, cities and municipalities, punong barangays and members of
the sangguniang barangays, and the elective regional officials of the Autonomous Region of Muslim
Mindanao. These are the only local elective officials deemed recognized by Section 2(2) of Article IX-C
of the Constitution, which provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

xxx xxx xxx

(2) Exercise exclusive original jurisdiction over all contests relating to the elections,
returns, and qualifications of all elective regional, provincial, and city officials, and
appellate jurisdiction over all contests involving elective municipal officials decided by
trial courts of general jurisdiction, or involving elective barangay officials decided by
trial courts of limited jurisdiction.

A regular election, whether national or local, can only refer to an election participated in by those who
possess the right of suffrage, are not otherwise disqualified by law, and who are registered voters. One of
the requirements for the exercise of suffrage under Section 1, Article V of the Constitution is that the
person must be at least 18 years of age, and one requisite before he can vote is that he be a registered
voter pursuant to the rules on registration prescribed in the Omnibus Election Code (Section 113-118).
Under the law, the SK includes the youth with ages ranging from 15 to 21 (Sec. 424, Local Government
Code of 1991). Accordingly, they include many who are not qualified to vote in a regular election, viz.,
those from ages 15 to less than 18. In no manner then may SK elections be considered a regular election
(whether national or local).

Indeed the Sangguniang Kabataan is nothing more than a youth organization, and although fully
recognized in the Local Government Code and vested with certain powers and functions, its elective
officials have not attained the status of local elective officials. So, in Mercado vs. Board of Election
Supervisors (243 SCRA 422 [1995]), this Court ruled that although the SK Chairman is an ex-
officio member of the sangguniang barangay an elective body that fact does not make him "an
elective barangay official," since the law specifically provides who comprise the elective officials of
the sangguniang barangay, viz., the punong barangay and the seven (7) regularsangguniang
barangay members elected at large by those qualified to exercise the right of suffrage under Article V of
the Constitution, who are likewise registered voters of the barangay. This shows further that the SK
election is not a regular local election for purposes of recall under Section 74 of the Local Government
Code.

Narvasa, C.J., Padilla, Regalado, Bellosillo, Vitug and Mendoza, JJ., concur.

Facts:
Petitioner is an elected barangay chairman of Pula, Cabanatuan City in 1994. Sometime in October 1995,
A petition for his recall as Punong Barangay was filed by his constituents. Public respondent COMELEC
resolved to approve the petition and set the recall election on November 13. In view of the petitioners
opposition, COMELEC deferred the election and rescheduled it on December 16, 1995. To prevent the
recall election from taking place, the petitioner filed a petition for injunction before the RTC. The trial
court issued a TRO. After conducting a summary hearing, the court dismissed the petition and lifted the
restraining order. The public respondent on a resolution date January 5, 1996, rescheduled the recall
election to be held January 13, 1996. Hence, this petition for certiorari. The petitioner argues the pursuant
to Section 74b of the Local Government code: no recall shall take place within one (1) year from the
date of the official's assumption to office or one (1) year immediately preceding a regular local election",
petitioner insists that the scheduled January 13, 1996 recall election is now barred (SK) election was set
on the first Monday of May 1996.

Issue:
Whether or not the recall election in question is in violation to the provisions of Section 74b of the Local
Government Code.

Held:
It is a rule in statutory construction that every part of the statute must be interpreted with reference to the
context, that every part of the statute must be considered together with the other parts, and kept
subservient to the general intent of the whole enactment. Paras interpretation of the law is too literal that
it does not accord with the intentions of the authors of the law. The spirit rather that the letters of a law
determines its construction. Hence, it was held that the regular local election refers to an election where
the office held by the local elective official sought to be recalled.

CASE #7
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-30642 April 30, 1985

PERFECTO S. FLORESCA, in his own behalf and on behalf of the minors ROMULO and
NESTOR S. FLORESCA; and ERLINDA FLORESCA-GABUYO, PEDRO S. FLORESCA, JR.,
CELSO S. FLORESCA, MELBA S. FLORESCA, JUDITH S. FLORESCA and CARMEN S.
FLORESCA;

LYDIA CARAMAT VDA. DE MARTINEZ in her own behalf and on behalf of her minor children
LINDA, ROMEO, ANTONIO JEAN and ELY, all surnamed Martinez; and DANIEL MARTINEZ
and TOMAS MARTINEZ;

SALUSTIANA ASPIRAS VDA. DE OBRA, in her own behalf and on behalf of her minor children
JOSE, ESTELA, JULITA SALUD and DANILO, all surnamed OBRA;

LYDIA CULBENGAN VDA. DE VILLAR, in her own behalf and on behalf of her minor children
EDNA, GEORGE and LARRY III, all surnamed VILLAR;

DOLORES LOLITA ADER VDA. DE LANUZA, in her own behalf and on behalf of her minor
children EDITHA, ELIZABETH, DIVINA, RAYMUNDO, NESTOR and AURELIO, JR. all
surnamed LANUZA;

EMERENCIANA JOSE VDA. DE ISLA, in her own behalf and on behalf of her minor children
JOSE, LORENZO, JR., MARIA, VENUS and FELIX, all surnamed ISLA, petitioners,
vs.
PHILEX MINING CORPORATION and HON. JESUS P. MORFE, Presiding Judge of Branch
XIII, Court of First Instance of Manila, respondents.

Rodolfo C. Pacampara for petitioners.

Tito M. Villaluna for respondents.

MAKASIAR, J.:

This is a petition to review the order of the former Court of First Instance of Manila, Branch XIII, dated
December 16, 1968 dismissing petitioners' complaint for damages on the ground of lack of jurisdiction.

Petitioners are the heirs of the deceased employees of Philex Mining Corporation (hereinafter referred to
as Philex), who, while working at its copper mines underground operations at Tuba, Benguet on June 28,
1967, died as a result of the cave-in that buried them in the tunnels of the mine. Specifically, the
complaint alleges that Philex, in violation of government rules and regulations, negligently and
deliberately failed to take the required precautions for the protection of the lives of its men working
underground. Portion of the complaint reads:

xxx xxx xxx

9. That for sometime prior and up to June 28,1967, the defendant PHILEX, with gross
and reckless negligence and imprudence and deliberate failure to take the required
precautions for the due protection of the lives of its men working underground at the
time, and in utter violation of the laws and the rules and regulations duly promulgated by
the Government pursuant thereto, allowed great amount of water and mud to accumulate
in an open pit area at the mine above Block 43-S-1 which seeped through and saturated
the 600 ft. column of broken ore and rock below it, thereby exerting tremendous pressure
on the working spaces at its 4300 level, with the result that, on the said date, at about 4
o'clock in the afternoon, with the collapse of all underground supports due to such
enormous pressure, approximately 500,000 cubic feet of broken ores rocks, mud and
water, accompanied by surface boulders, blasted through the tunnels and flowed out and
filled in, in a matter of approximately five (5) minutes, the underground workings, ripped
timber supports and carried off materials, machines and equipment which blocked all
avenues of exit, thereby trapping within its tunnels of all its men above referred to,
including those named in the next preceding paragraph, represented by the plaintiffs
herein;

10. That out of the 48 mine workers who were then working at defendant PHILEX's mine
on the said date, five (5) were able to escape from the terrifying holocaust; 22 were
rescued within the next 7 days; and the rest, 21 in number, including those referred to in
paragraph 7 hereinabove, were left mercilessly to their fate, notwithstanding the fact that
up to then, a great many of them were still alive, entombed in the tunnels of the mine, but
were not rescued due to defendant PHILEX's decision to abandon rescue operations, in
utter disregard of its bounden legal and moral duties in the premises;

xxx xxx xxx

13. That defendant PHILEX not only violated the law and the rules and regulations duly
promulgated by the duly constituted authorities as set out by the Special Committee
above referred to, in their Report of investigation, pages 7-13, Annex 'B' hereof, but also
failed completely to provide its men working underground the necessary security for the
protection of their lives notwithstanding the fact that it had vast financial resources, it
having made, during the year 1966 alone, a total operating income of P 38,220,254.00, or
net earnings, after taxes of P19,117,394.00, as per its llth Annual Report for the year
ended December 31, 1966, and with aggregate assets totalling P 45,794,103.00 as of
December 31, 1966;

xxx xxx xxx

(pp. 42-44, rec.)

A motion to dismiss dated May 14, 1968 was filed by Philex alleging that the causes of action of
petitioners based on an industrial accident are covered by the provisions of the Workmen's Compensation
Act (Act 3428, as amended by RA 772) and that the former Court of First Instance has no jurisdiction
over the case. Petitioners filed an opposition dated May 27, 1968 to the said motion to dismiss claiming
that the causes of action are not based on the provisions of the Workmen's Compensation Act but on the
provisions of the Civil Code allowing the award of actual, moral and exemplary damages, particularly:

Art. 2176. 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.

Art. 2178. The provisions of articles 1172 to 1174 are also applicable to a quasi-delict.

(b) Art. 1173The fault or negligence of the obligor consists in the omission of that
diligence which is required by the nature of the obligation and corresponds with the
circumstances of the persons, of the time and of the place. When negligence shows bad
faith, the provisions of Articles 1171 and 2201, paragraph 2 shall apply.

Art. 2201. x x x x x x x x x

In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for
all damages which may be reasonably attributed to the non-performance of the
obligation.

Art. 2231. In quasi-delicts, exemplary damages may be granted if the defendant acted
with gross negligence.

After a reply and a rejoinder thereto were filed, respondent Judge issued an order dated June 27, 1968
dismissing the case on the ground that it falls within the exclusive jurisdiction of the Workmen's
Compensation Commission. On petitioners' motion for reconsideration of the said order, respondent
Judge, on September 23, 1968, reconsidered and set aside his order of June 27, 1968 and allowed Philex
to file an answer to the complaint. Philex moved to reconsider the aforesaid order which was opposed by
petitioners.

On December 16, 1968, respondent Judge dismissed the case for lack of jurisdiction and ruled that in
accordance with the established jurisprudence, the Workmen's Compensation Commission has exclusive
original jurisdiction over damage or compensation claims for work-connected deaths or injuries of
workmen or employees, irrespective of whether or not the employer was negligent, adding that if the
employer's negligence results in work-connected deaths or injuries, the employer shall, pursuant to
Section 4-A of the Workmen's Compensation Act, pay additional compensation equal to 50% of the
compensation fixed in the Act.

Petitioners thus filed the present petition.

In their brief, petitioners raised the following assignment of errors:

THE LOWER COURT ERRED IN DISMISSING THE PLAINTIFFS- PETITIONERS'

COMPLAINT FOR LACK OF JURISDICTION.

II
 THE LOWER COURT ERRED IN FAILING TO CONSIDER THE CLEAR
DISTINCTION BETWEEN CLAIMS FOR DAMAGES UNDER THE CIVIL CODE
AND CLAIMS FOR COMPENSATION UNDER THE WORKMEN'S
COMPENSATION ACT.

In the first assignment of error, petitioners argue that the lower court has jurisdiction over the cause of
action since the complaint is based on the provisions of the Civil Code on damages, particularly Articles
2176, 2178, 1173, 2201 and 2231, and not on the provisions of the Workmen's Compensation Act. They
point out that the complaint alleges gross and brazen negligence on the part of Philex in failing to take the
necessary security for the protection of the lives of its employees working underground. They also assert
that since Philex opted to file a motion to dismiss in the court a quo, the allegations in their complaint
including those contained in the annexes are deemed admitted.

In the second assignment of error, petitioners asseverate that respondent Judge failed to see the distinction
between the claims for compensation under the Workmen's Compensation Act and the claims for
damages based on gross negligence of Philex under the Civil Code. They point out that workmen's
compensation refers to liability for compensation for loss resulting from injury, disability or death of the
working man through industrial accident or disease, without regard to the fault or negligence of the
employer, while the claim for damages under the Civil Code which petitioners pursued in the regular
court, refers to the employer's liability for reckless and wanton negligence resulting in the death of the
employees and for which the regular court has jurisdiction to adjudicate the same.

On the other hand, Philex asserts that work-connected injuries are compensable exclusively under the
provisions of Sections 5 and 46 of the Workmen's Compensation Act, which read:

SEC. 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 ...

SEC. 46. Jurisdiction. The Workmen's Compensation Commissioner shall have

exclusive jurisdiction to hear and decide claims for compensation under the Workmen's
Compensation Act, subject to appeal to the Supreme Court, ...

Philex cites the case of Manalo vs. Foster Wheeler (98 Phil. 855 [1956]) where it was held that "all claims
of workmen against their employer for damages due to accident suffered in the course of employment
shall be investigated and adjudicated by the Workmen's Compensation Commission," subject to appeal to
the Supreme Court.

Philex maintains that the fact that an employer was negligent, does not remove the case from the
exclusive character of recoveries under the Workmen's Compensation Act; because Section 4-A of the
Act provides an additional compensation in case the employer fails to comply with the requirements of
safety as imposed by law to prevent accidents. In fact, it points out that Philex voluntarily paid the
compensation due the petitioners and all the payments have been accepted in behalf of the deceased
miners, except the heirs of Nazarito Floresca who insisted that they are entitled to a greater amount of
damages under the Civil Code.
In the hearing of this case, then Undersecretary of Labor Israel Bocobo, then Atty. Edgardo Angara, now
President of the University of the Philippines, Justice Manuel Lazaro, as corporate counsel and Assistant
General Manager of the GSIS Legal Affairs Department, and Commissioner on Elections, formerly UP
Law Center Director Froilan Bacungan, appeared as amici curiae and thereafter, submitted their
respective memoranda.

The issue to be resolved as WE stated in the resolution of November 26, 1976, is:

Whether the action of an injured employee or worker or that of his heirs in case of his
death under the Workmen's Compensation Act is exclusive, selective or cumulative, that
is to say, whether his or his heirs' action is exclusively restricted to seeking the limited
compensation provided under the Workmen's Compensation Act or whether they have a
right of selection or choice of action between availing of the worker's right under the
Workmen's Compensation Act and suing in the regular courts under the Civil Code for
higher damages (actual, moral and/or exemplary) from the employer by virtue of
negligence (or fault) of the employer or of his other employees or whether they may avail
cumulatively of both actions, i.e., collect the limited compensation under the Workmen's
Compensation Act and sue in addition for damages in the regular courts.

There are divergent opinions in this case. Justice Lazaro is of the opinion that an injured employee or
worker, or the heirs in case of his death, may initiate a complaint to recover damages (not compensation
under the Workmen's Compensation Act) with the regular court on the basis of negligence of an employer
pursuant to the Civil Code provisions. Atty. Angara believes otherwise. He submits that the remedy of an
injured employee for work-connected injury or accident is exclusive in accordance with Section 5 of the
Workmen's Compensation Act, while Atty. Bacungan's position is that the action is selective. He opines
that the heirs of the employee in case of his death have a right of choice to avail themselves of the
benefits provided under the Workmen's Compensation Act or to sue in the regular court under the Civil
Code for higher damages from the employer by virtue of negligence of the latter. Atty. Bocobo's stand is
the same as that of Atty. Bacungan and adds that once the heirs elect the remedy provided for under the
Act, they are no longer entitled to avail themselves of the remedy provided for under the Civil Code by
filing an action for higher damages in the regular court, and vice versa.

On August 3, 1978, petitioners-heirs of deceased employee Nazarito Floresca filed a motion to dismiss on
the ground that they have amicably settled their claim with respondent Philex. In the resolution of
September 7, 1978, WE dismissed the petition only insofar as the aforesaid petitioners are connected, it
appearing that there are other petitioners in this case.

WE hold that the former Court of First Instance has jurisdiction to try the case,

It should be underscored that petitioners' complaint is not for compensation based on the Workmen's
Compensation Act but a complaint for damages (actual, exemplary and moral) in the total amount of eight
hundred twenty-five thousand (P825,000.00) pesos. Petitioners did not invoke the provisions of the
Workmen's Compensation Act to entitle them to compensation thereunder. In fact, no allegation appeared
in the complaint that the employees died from accident arising out of and in the course of their
employments. The complaint instead alleges gross and reckless negligence and deliberate failure on the
part of Philex to protect the lives of its workers as a consequence of which a cave-in occurred resulting in
the death of the employees working underground. Settled is the rule that in ascertaining whether or not the
cause of action is in the nature of workmen's compensation claim or a claim for damages pursuant to the
provisions of the Civil Code, the test is the averments or allegations in the complaint (Belandres vs.
Lopez Sugar Mill, Co., Inc., 97 Phil. 100).
In the present case, there exists between Philex and the deceased employees a contractual relationship.
The alleged gross and reckless negligence and deliberate failure that amount to bad faith on the part of
Philex, constitute a breach of contract for which it may be held liable for damages. The provisions of the
Civil Code on cases of breach of contract when there is fraud or bad faith, read:

Art. 2232. In contracts and quasi-contracts, the court may award exemplary damages if
the defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent manner.

Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted
in good faith is able shall be those that are the natural and probable consequences of the
breach of the obligation, and which the parties have foreseen or could have reasonably
foreseen at the time the obligation was constituted.

In cases of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for
all damages which may be reasonably attributed to the non-performance of the
obligation.

Furthermore, Articles 2216 et seq., Civil Code, allow the payment of all kinds of damages, as assessed by
the court.

The rationale in awarding compensation under the Workmen's Compensation Act differs from that in
giving damages under the Civil Code. The compensation acts are based on a theory of compensation
distinct from the existing theories of damages, payments under the acts being made as compensation and
not as damages (99 C.J.S. 53). Compensation is given to mitigate the harshness and insecurity of
industrial life for the workman and his family. Hence, an employer is liable whether negligence exists or
not since liability is created by law. Recovery under the Act is not based on any theory of actionable
wrong on the part of the employer (99 C.J.S. 36).

In other words, under the compensation acts, the employer is liable to pay compensation benefits for loss
of income, as long as the death, sickness or injury is work-connected or work-aggravated, even if the
death or injury is not due to the fault of the employer (Murillo vs. Mendoza, 66 Phil. 689). On the other
hand, damages are awarded to one as a vindication of the wrongful invasion of his rights. It is the
indemnity recoverable by a person who has sustained injury either in his person, property or relative
rights, through the act or default of another (25 C.J.S. 452).

The claimant for damages under the Civil Code has the burden of proving the causal relation between the
defendant's negligence and the resulting injury as well as the damages suffered. While under the
Workmen's Compensation Act, there is a presumption in favor of the deceased or injured employee that
the death or injury is work-connected or work-aggravated; and the employer has the burden to prove
otherwise (De los Angeles vs. GSIS, 94 SCRA 308; Carino vs. WCC, 93 SCRA 551; Maria Cristina
Fertilizer Corp. vs. WCC, 60 SCRA 228).

The claim of petitioners that the case is not cognizable by the Workmen's Compensation Commission
then, now Employees Compensation Commission, is strengthened by the fact that unlike in the Civil
Code, the Workmen's Compensation Act did not contain any provision for an award of actual, moral and
exemplary damages. What the Act provided was merely the right of the heirs to claim limited
compensation for the death in the amount of six thousand (P6,000.00) pesos plus burial expenses of two
hundred (P200.00) pesos, and medical expenses when incurred (Sections 8, 12 and 13, Workmen's
Compensation Act), and an additional compensation of only 50% if the complaint alleges failure on the
part of the employer to "install and maintain safety appliances or to take other precautions for the
prevention of accident or occupational disease" (Section 4-A, Ibid.). In the case at bar, the amount sought
to be recovered is over and above that which was provided under the Workmen's Compensation Act and
which cannot be granted by the Commission.

Moreover, under the Workmen's Compensation Act, compensation benefits should be paid to an
employee who suffered an accident not due to the facilities or lack of facilities in the industry of his
employer but caused by factors outside the industrial plant of his employer. Under the Civil Code, the
liability of the employer, depends on breach of contract or tort. The Workmen's Compensation Act was
specifically enacted to afford protection to the employees or workmen. It is a social legislation designed
to give relief to the workman who has been the victim of an accident causing his death or ailment or
injury in the pursuit of his employment (Abong vs. WCC, 54 SCRA 379).

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

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

In Pacaa WE said:

In the analogous case of Esguerra vs. Munoz Palma, involving the application of Section
6 of the Workmen's Compensation Act on the injured workers' right to sue third- party
tortfeasors in the regular courts, Mr. Justice J.B.L. Reyes, again speaking for the Court,
pointed out that the injured worker has the choice of remedies but cannot pursue both
courses of action simultaneously and thus balanced the relative advantage of recourse
under the Workmen's Compensation Act as against an ordinary action.

As applied to this case, petitioner Esguerra cannot maintain his action for damages
against the respondents (defendants below), because he has elected to seek compensation
under the Workmen's Compensation Law, and his claim (case No. 44549 of the
Compensation Commission) was being processed at the time he filed this action in the
Court of First Instance. It is argued for petitioner that as the damages recoverable under
the Civil Code are much more extensive than the amounts that may be awarded under the
Workmen's Compensation Act, they should not be deemed incompatible. As already
indicated, the injured laborer was initially free to choose either to recover from the
employer the fixed amounts set by the Compensation Law or else, to prosecute an
ordinary civil action against the tortfeasor for higher damages. While perhaps not as
profitable, the smaller indemnity obtainable by the first course is balanced by the
claimant's being relieved of the burden of proving the causal connection between the
defendant's negligence and the resulting injury, and of having to establish the extent of
the damage suffered; issues that are apt to be troublesome to establish satisfactorily.
Having staked his fortunes on a particular remedy, petitioner is precluded from pursuing
the alternate course, at least until the prior claim is rejected by the Compensation
Commission. Anyway, under the proviso of Section 6 aforequoted, if the employer
 Franklin Baker Company recovers, by derivative action against the alleged tortfeasors, a
sum greater than the compensation he may have paid the herein petitioner, the excess
accrues to the latter.

Although the doctrine in the case of Esguerra vs. Munoz Palma (104 Phil. 582), applies to third-party
tortfeasor, said rule should likewise apply to the employer-tortfeasor.

Insofar as the heirs of Nazarito Floresca are concerned, as already stated, the petition has been dismissed
in the resolution of September 7, 1978 in view of the amicable settlement reached by Philex and the said
heirs.

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 Martinez 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 (pp.
106-107, rec.). Such allegation was admitted by herein petitioners in their opposition to the motion to
dismiss dated May 27, 1968 (pp. 121-122, rec.) in the lower court, but they set up the defense that the
claims were filed under the Workmen's Compensation Act before they learned of the official report of the
committee created to investigate the accident which established the criminal negligence and violation of
law by Philex, and which report was forwarded by the Director of Mines to the then Executive Secretary
Rafael Salas in a letter dated October 19, 1967 only (p. 76, rec.).

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

Contrary to the perception of the dissenting opinion, the Court does not legislate in the instant case. The
Court merely applies and gives effect to the constitutional guarantees of social justice then secured by
Section 5 of Article 11 and Section 6 of Article XIV of the 1935 Constitution, and now by Sections 6, 7,
and 9 of Article 11 of the DECLARATION OF PRINCIPLES AND STATE POLICIES of the 1973
Constitution, as amended, and as implemented by Articles 2176, 2177, 2178, 1173, 2201, 2216, 2231 and
2232 of the New Civil Code of 1950.

To emphasize, the 1935 Constitution declares that:

Sec. 5. The promotion of social justice to insure the well-being and economic security of
all the people should be the concern of the State (Art. II).
 Sec. 6. The State shall afford protection to labor, especially to working women, and
minors, and shall regulate the relations between landowner and tenant, and between labor
and capital in industry and in agriculture. The State may provide for compulsory
arbitration (Art. XIV).

The 1973 Constitution likewise commands the State to "promote social justice to insure the dignity,
welfare, and security of all the people "... regulate the use ... and disposition of private property and
equitably diffuse property ownership and profits "establish, maintain and ensure adequate social services
in, the field of education, health, housing, employment, welfare and social security to guarantee the
enjoyment by the people of a decent standard of living" (Sections 6 and 7, Art. II, 1973 Constitution);
"... afford protection to labor, ... and regulate the relations between workers and employers ..., and assure
the rights of workers to ... just and humane conditions of work"(Sec. 9, Art. II, 1973 Constitution,
emphasis supplied).

The foregoing constitutional guarantees in favor of labor institutionalized in Section 9 of Article 11 of the
1973 Constitution and re-stated as a declaration of basic policy in Article 3 of the New Labor Code, thus:

Art. 3. Declaration of basic policy.The State shall afford protection to labor, promote
full employment, ensure equal work opportunities regardless of sex, race or creed,
and regulate the relations between workers and employers. The State shall assure the
rights of workers to self-organization, collective bargaining, security of tenure, and just
and humane conditions of work. (emphasis supplied).

The aforestated constitutional principles as implemented by the aforementioned articles of the New Civil
Code cannot be impliedly repealed by the restrictive provisions of Article 173 of the New Labor Code.
Section 5 of the Workmen's Compensation Act (before it was amended by R.A. No. 772 on June 20,
1952), predecessor of Article 173 of the New Labor Code, has been superseded by the aforestated
provisions of the New Civil Code, a subsequent law, which took effect on August 30, 1950, which obey
the constitutional mandates of social justice enhancing as they do the rights of the workers as against their
employers. Article 173 of the New Labor Code seems to diminish the rights of the workers and therefore
collides with the social justice guarantee of the Constitution and the liberal provisions of the New Civil
Code.

The guarantees of social justice embodied in Sections 6, 7 and 9 of Article II of the 1973 Constitution are
statements of legal principles to be applied and enforced by the courts. Mr. Justice Robert Jackson in the
case of West Virginia State Board of Education vs. Barnette, with characteristic eloquence, enunciated:

The very purpose of a Bill of Rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the reach of majorities and
officials and to establish them as legal principles to be applied by the courts. One's right
to life, liberty, and property, to free speech, a free press, freedom of worship and
assembly, and other fundamental rights may not be submitted to vote; they depend on the
outcome of no elections (319 U.S. 625, 638, 87 L.ed. 1638, emphasis supplied).

In case of any doubt which may be engendered by Article 173 of the New Labor Code, both the New
Labor Code and the Civil Code direct that the doubts should be resolved in favor of the workers and
employees.

Thus, Article 4 of the New Labor Code, otherwise known as Presidential Decree No. 442, as amended,
promulgated on May 1, 1974, but which took effect six months thereafter, provides that "all doubts in the
implementation and interpretation of the provisions of this Code, including its implementing rules and
regulations, shall be resolved in favor of labor" (Art. 2, Labor Code).

Article 10 of the New Civil Code states: "In case of doubt in the interpretation or application of laws, it is
presumed that the law-making body intended right and justice to prevail. "

More specifically, Article 1702 of the New Civil Code likewise directs that. "In case of doubt, all labor
legislation and all labor contracts shall be construed in favor of the safety and decent living of the
laborer."

Before it was amended by Commonwealth Act No. 772 on June 20, 1952, Section 5 of the Workmen's
Compensation Act provided:

Sec. 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 (emphasis supplied).

Employers contracting laborecsrs in the Philippine Islands for work outside the same may
stipulate with such laborers that the remedies prescribed by this Act shall apply
exclusively to injuries received outside the Islands through accidents happening in and
during the performance of the duties of the employment; and all service contracts made in
the manner prescribed in this section shall be presumed to include such agreement.

Only the second paragraph of Section 5 of the Workmen's Compensation Act No. 3428, was amended by
Commonwealth Act No. 772 on June 20, 1952, thus:

Sec. 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.

Employers contracting laborers in the Philippine Islands for work outside the same shall
stipulate with such laborers that the remedies prescribed by this Act shall apply to injuries
received outside the Island through accidents happening in and during the performance of
the duties of the employment. Such stipulation shall not prejudice the right of the laborers
to the benefits of the Workmen's Compensation Law of the place where the accident
occurs, should such law be more favorable to them (As amended by section 5 of Republic
Act No. 772).

Article 173 of the New Labor Code does not repeal expressly nor impliedly the applicable provisions of
the New Civil Code, because said Article 173 provides:

Art. 173. Exclusiveness 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 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, Commonwealth Act Numbered One hundred eighty- six, as amended,
Commonwealth 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 during the period of such payment for the same disability or
death, and conversely (emphasis supplied).

As above-quoted, Article 173 of the New Labor Code expressly repealed only Section 699 of the Revised
Administrative Code, R.A. No. 1161, as amended, C.A. No. 186, as amended, R.A. No. 610, as amended,
R.A. No. 4864, as amended, and all other laws whose benefits are administered by the System (referring
to the GSIS or SSS).

Unlike Section 5 of the Workmen's Compensation Act as aforequoted, Article 173 of the New Labor
Code does not even remotely, much less expressly, repeal the New Civil Code provisions heretofore
quoted.

It is patent, therefore, that recovery under the New Civil Code for damages arising from negligence, is not
barred by Article 173 of the New Labor Code. And the damages recoverable under the New Civil Code
are not administered by the System provided for by the New Labor Code, which defines the "System" as
referring to the Government Service Insurance System or the Social Security System (Art. 167 [c], [d] and
[e] of the New Labor Code).

Furthermore, under Article 8 of the New Civil Code, decisions of the Supreme Court form part of the law
of the land.

Article 8 of the New Civil Code provides:

Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a
part of the legal system of the Philippines.

The Court, through the late Chief Justice Fred Ruiz Castro, in People vs. Licera ruled:

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" (65 SCRA 270, 272-273 [1975]).

WE ruled that judicial decisions of the Supreme Court assume the same authority as the statute itself
(Caltex vs. Palomer, 18 SCRA 247; 124 Phil. 763).

The aforequoted provisions of Section 5 of the Workmen's Compensation Act, before and after it was
amended by Commonwealth Act No. 772 on June 20, 1952, limited the right of recovery in favor of the
deceased, ailing or injured employee to the compensation provided for therein. Said Section 5 was not
accorded controlling application by the Supreme Court in the 1970 case of Pacana vs. Cebu Autobus
Company (32 SCRA 442) when WE ruled that an injured worker has a choice of either to recover from
the employer the fixed amount set by the Workmen's Compensation Act or to prosecute an ordinary civil
action against the tortfeasor for greater damages; but he cannot pursue both courses of action
simultaneously. Said Pacana case penned by Mr. Justice Teehankee, applied Article 1711 of the Civil
Code as against the Workmen's Compensation Act, reiterating the 1969 ruling in the case of Valencia vs.
Manila Yacht Club (28 SCRA 724, June 30,1969) and the 1958 case of Esguerra vs. Munoz Palma (104
Phil. 582), both penned by Justice J.B.L. Reyes. Said Pacana case was concurred in by Justices J.B.L.
Reyes, Dizon, Makalintal, Zaldivar, Castro, Fernando and Villamor.

Since the first sentence of Article 173 of the New Labor Code is merely a re-statement of the first
paragraph of Section 5 of the Workmen's Compensation Act, as amended, and does not even refer, neither
expressly nor impliedly, to the Civil Code as Section 5 of the Workmen's Compensation Act did, with
greater reason said Article 173 must be subject to the same interpretation adopted in the cases of Pacana,
Valencia and Esguerra aforementioned as the doctrine in the aforesaid three (3) cases is faithful to and
advances the social justice guarantees enshrined in both the 1935 and 1973 Constitutions.

It should be stressed likewise that there is no similar provision on social justice in the American Federal
Constitution, nor in the various state constitutions of the American Union. Consequently, the restrictive
nature of the American decisions on the Workmen's Compensation Act cannot limit the range and
compass of OUR interpretation of our own laws, especially Article 1711 of the New Civil Code, vis-a-vis
Article 173 of the New Labor Code, in relation to Section 5 of Article II and Section 6 of Article XIV of
the 1935 Constitution then, and now Sections 6, 7 and 9 of the Declaration of Principles and State
Policies of Article II of the 1973 Constitution.

The dissent seems to subordinate the life of the laborer to the property rights of the employer. The right to
life is guaranteed specifically by the due process clause of the Constitution. To relieve the employer from
liability for the death of his workers arising from his gross or wanton fault or failure to provide safety
devices for the protection of his employees or workers against the dangers which are inherent in
underground mining, is to deprive the deceased worker and his heirs of the right to recover indemnity for
the loss of the life of the worker and the consequent loss to his family without due process of law. The
dissent in effect condones and therefore encourages such gross or wanton neglect on the part of the
employer to comply with his legal obligation to provide safety measures for the protection of the life,
limb and health of his worker. Even from the moral viewpoint alone, such attitude is un-Christian.

It is therefore patent that giving effect to the social justice guarantees of the Constitution, as implemented
by the provisions of the New Civil Code, is not an exercise of the power of law-making, but is rendering
obedience to the mandates of the fundamental law and the implementing legislation aforementioned.

The Court, to repeat, is not legislating in the instant case.

It is axiomatic that no ordinary statute can override a constitutional provision.

The words of Section 5 of the Workmen's Compensation Act and of Article 173 of the New Labor Code
subvert the rights of the petitioners as surviving heirs of the deceased mining employees. Section 5 of the
Workmen's Compensation Act and Article 173 of the New Labor Code are retrogressive; because they are
a throwback to the obsolete laissez-faire doctrine of Adam Smith enunciated in 1776 in his treatise
Wealth of Nations (Collier's Encyclopedia, Vol. 21, p. 93, 1964), which has been discarded soon after the
close of the 18th century due to the Industrial Revolution that generated the machines and other
mechanical devices (beginning with Eli Whitney's cotton gin of 1793 and Robert Fulton's steamboat of
1807) for production and transportation which are dangerous to life, limb and health. The old socio-
political-economic philosophy of live-and-let-live is now superdesed by the benign Christian shibboleth
of live-and-help others to live. Those who profess to be Christians should not adhere to Cain's selfish
affirmation that he is not his brother's keeper. In this our civilization, each one of us is our brother's
keeper. No man is an island. To assert otherwise is to be as atavistic and ante-deluvian as the 1837 case of
Prisley vs. Fowler (3 MN 1,150 reprint 1030) invoked by the dissent, The Prisley case was decided in
1837 during the era of economic royalists and robber barons of America. Only ruthless, unfeeling
capitalistics and egoistic reactionaries continue to pay obeisance to such un-Christian doctrine. The
Prisley rule humiliates man and debases him; because the decision derisively refers to the lowly worker as
"servant" and utilizes with aristocratic arrogance "master" for "employer." It robs man of his inherent
dignity and dehumanizes him. To stress this affront to human dignity, WE only have to restate the
quotation from Prisley, thus: "The mere relation of the master and the servant never can imply an
obligation on the part of the master to take more care of the servant than he may reasonably be expected
to do himself." This is the very selfish doctrine that provoked the American Civil War which generated so
much hatred and drew so much precious blood on American plains and valleys from 1861 to 1864.

"Idolatrous reverence" for the letter of the law sacrifices the human being. The spirit of the law insures
man's survival and ennobles him. In the words of Shakespeare, "the letter of the law killeth; its spirit
giveth life."

It is curious that the dissenting opinion clings to the myth that the courts cannot legislate.

That myth had been exploded by Article 9 of the New Civil Code, which provides that "No judge or court
shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws. "

Hence, even the legislator himself, through Article 9 of the New Civil Code, recognizes that in certain
instances, the court, in the language of Justice Holmes, "do and must legislate" to fill in the gaps in the
law; because the mind of the legislator, like all human beings, is finite and therefore cannot envisage all
possible cases to which the law may apply Nor has the human mind the infinite capacity to anticipate all
situations.

But about two centuries before Article 9 of the New Civil Code, the founding fathers of the American
Constitution foresaw and recognized the eventuality that the courts may have to legislate to supply the
omissions or to clarify the ambiguities in the American Constitution and the statutes.

'Thus, Alexander Hamilton pragmatically admits that judicial legislation may be justified but denies that
the power of the Judiciary to nullify statutes may give rise to Judicial tyranny (The Federalist, Modern
Library, pp. 503-511, 1937 ed.). Thomas Jefferson went farther to concede that the court is even
independent of the Nation itself (A.F.L. vs. American Sash Company, 1949 335 US 538).

Many of the great expounders of the American Constitution likewise share the same view. Chief Justice
Marshall pronounced: "It is emphatically the province and duty of the Judicial department to say what the
law is (Marbury vs. Madison I Cranch 127 1803), which was re-stated by Chief Justice Hughes when he
said that "the Constitution is what the judge says it is (Address on May 3, 1907, quoted by President
Franklin Delano Roosevelt on March 9, 1937). This was reiterated by Justice Cardozo who pronounced
that "No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open
spaces in the law. " (The Nature of the Judicial Process, p. 113). In the language of Chief Justice Harlan
F. Stone, "The only limit to the judicial legislation is the restraint of the judge" (U.S. vs. Butler 297 U.S. 1
Dissenting Opinion, p. 79), which view is also entertained by Justice Frankfurter and Justice Robert
Jackson. In the rhetoric of Justice Frankfurter, "the courts breathe life, feeble or strong, into the inert
pages of the Constitution and all statute books."

It should be stressed that the liability of the employer under Section 5 of the Workmen's Compensation
Act or Article 173 of the New Labor Code is limited to death, ailment or injury caused by the nature of
the work, without any fault on the part of the employers. It is correctly termed no fault liability. Section 5
of the Workmen's Compensation Act, as amended, or Article 173 of the New Labor Code, does not cover
the tortious liability of the employer occasioned by his fault or culpable negligence in failing to provide
the safety devices required by the law for the protection of the life, limb and health of the workers. Under
either Section 5 or Article 173, the employer remains liable to pay compensation benefits to the employee
whose death, ailment or injury is work-connected, even if the employer has faithfully and diligently
furnished all the safety measures and contrivances decreed by the law to protect the employee.

The written word is no longer the "sovereign talisman." In the epigrammatic language of Mr. Justice
Cardozo, "the law has outgrown its primitive stage of formalism when the precise word was the sovereign
talisman, and every slip was fatal" (Wood vs. Duff Gordon 222 NW 88; Cardozo, The Nature of the
Judicial Process 100). Justice Cardozo warned that: "Sometimes the conservatism of judges has
threatened for an interval to rob the legislation of its efficacy. ... Precedents established in those items
exert an unhappy influence even now" (citing Pound, Common Law and Legislation 21 Harvard Law
Review 383, 387).

Finally, Justice Holmes delivered the coup de grace when he pragmatically admitted, although with a
cautionary undertone: "that judges do and must legislate, but they can do so only interstitially they are
confined from molar to molecular motions" (Southern Pacific Company vs. Jensen, 244 US 204 1917).
And in the subsequent case of Springer vs. Government (277 US 188, 210-212, 72 L.ed. 845, 852- 853),
Justice Holmes pronounced:

The great ordinances of the Constitution do not establish and divide fields of black and
white. Even the more specific of them are found to terminate in a penumbra shading
gradually from one extreme to the other. x x x. When we come to the fundamental
distinctions it is still more obvious that they must be received with a certain latitude or
our government could not go on.

To make a rule of conduct applicable to an individual who but for such action would be
free from it is to legislate yet it is what the judges do whenever they determine which of
two competing principles of policy shall prevail.

xxx xxx xxx

It does not seem to need argument to show that however we may disguise it by veiling
words we do not and cannot carry out the distinction between legislative and executive
action with mathematical precision and divide the branches into waterlight
compartments, were it ever so desirable to do so, which I am far from believing that it is,
or that the Constitution requires.

True, there are jurists and legal writers who affirm that judges should not legislate, but grudgingly
concede that in certain cases judges do legislate. They criticize the assumption by the courts of such law-
making power as dangerous for it may degenerate into Judicial tyranny. They include Blackstone, Jeremy
Bentham, Justice Black, Justice Harlan, Justice Roberts, Justice David Brewer, Ronald Dworkin, Rolf
Sartorious, Macklin Fleming and Beryl Harold Levy. But said Justices, jurists or legal commentators,
who either deny the power of the courts to legislate in-between gaps of the law, or decry the exercise of
such power, have not pointed to examples of the exercise by the courts of such law-making authority in
the interpretation and application of the laws in specific cases that gave rise to judicial tyranny or
oppression or that such judicial legislation has not protected public interest or individual welfare,
particularly the lowly workers or the underprivileged.
On the other hand, there are numerous decisions interpreting the Bill of Rights and statutory enactments
expanding the scope of such provisions to protect human rights. Foremost among them is the doctrine in
the cases of Miranda vs. Arizona (384 US 436 1964), Gideon vs. Wainright (372 US 335), Escubedo vs.
Illinois (378 US 478), which guaranteed the accused under custodial investigation his rights to remain
silent and to counsel and to be informed of such rights as even as it protects him against the use of force
or intimidation to extort confession from him. These rights are not found in the American Bill of Rights.
These rights are now institutionalized in Section 20, Article IV of the 1973 Constitution. Only the peace-
and-order adherents were critical of the activism of the American Supreme Court led by Chief Justice Earl
Warren.

Even the definition of Identical offenses for purposes of the double jeopardy provision was developed by
American judicial decisions, not by amendment to the Bill of Rights on double jeopardy (see Justice
Laurel in People vs. Tarok, 73 Phil. 260, 261-268). And these judicial decisions have been re-stated in
Section 7 of Rule 117 of the 1985 Rules on Criminal Procedure, as well as in Section 9 of Rule 117 of the
1964 Revised Rules of Court. In both provisions, the second offense is the same as the first offense if the
second offense is an attempt to commit the first or frustration thereof or necessarily includes or is
necessarily included in the first offense.

The requisites of double jeopardy are not spelled out in the Bill of Rights. They were also developed by
judicial decisions in the United States and in the Philippines even before people vs. Ylagan (58 Phil. 851-
853).

Again, the equal protection clause was interpreted in the case of Plessy vs. Ferguson (163 US 537) as
securing to the Negroes equal but separate facilities, which doctrine was revoked in the case of Brown vs.
Maryland Board of Education (349 US 294), holding that the equal protection clause means that the
Negroes are entitled to attend the same schools attended by the whites-equal facilities in the same school-
which was extended to public parks and public buses.

De-segregation, not segregation, is now the governing principle.

Among other examples, the due process clause was interpreted in the case of People vs. Pomar (46 Phil.
440) by a conservative, capitalistic court to invalidate a law granting maternity leave to working women-
according primacy to property rights over human rights. The case of People vs. Pomar is no longer the
rule.

As early as 1904, in the case of Lochner vs. New York (198 US 45, 76, 49 L. ed. 937, 949), Justice
Holmes had been railing against the conservatism of Judges perverting the guarantee of due process to
protect property rights as against human rights or social justice for the working man. The law fixing
maximum hours of labor was invalidated. Justice Holmes was vindicated finally in 1936 in the case of
West Coast Hotel vs. Parish (300 US 377-79; 81 L. ed. 703) where the American Supreme Court upheld
the rights of workers to social justice in the form of guaranteed minimum wage for women and minors,
working hours not exceeding eight (8) daily, and maternity leave for women employees.

The power of judicial review and the principle of separation of powers as well as the rule on political
questions have been evolved and grafted into the American Constitution by judicial decisions (Marbury
vs. Madison, supra Coleman vs. Miller, 307 US 433, 83 L. ed. 1385; Springer vs. Government, 277 US
210-212, 72 L. ed. 852, 853).

It is noteworthy that Justice Black, who seems to be against judicial legislation, penned a separate
concurring opinion in the case of Coleman vs. Miller, supra, affirming the doctrine of political question as
beyond the ambit of judicial review. There is nothing in both the American and Philippine Constitutions
expressly providing that the power of the courts is limited by the principle of separation of powers and the
doctrine on political questions. There are numerous cases in Philippine jurisprudence applying the
doctrines of separation of powers and political questions and invoking American precedents.

Unlike the American Constitution, both the 1935 and 1973 Philippine Constitutions expressly vest in the
Supreme Court the power to review the validity or constitutionality of any legislative enactment or
executive act.

WHEREFORE, THE TRIAL COURT'S ORDER OF DISMISSAL IS HEREBY REVERSED AND SET
ASIDE AND THE CASE IS REMANDED TO IT FOR FURTHER PROCEEDINGS. SHOULD A
GREATER AMOUNT OF DAMAGES BE DECREED IN FAVOR OF HEREIN PETITIONERS, THE
PAYMENTS ALREADY MADE TO THEM PURSUANT TO THE WORKMEN'S COMPENSATION
ACT SHALL BE DEDUCTED. NO COSTS.

SO ORDERED.

Fernando, C.J., Teehankee, Plana, Escolin, De la Fuente, Cuevas and Alampay JJ., concur.

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

Abad Santos and Relova, JJ., took no part.

Separate Opinions

MELENCIO-HERRERA, J., dissenting:

This case involves a complaint for damages for the death of five employees of PHILEX Mining
Corporation under the general provisions of the Civil Code. The Civil Code itself, however, provides for
its non-applicability to the complaint. It is specifically provided in Article 2196 of the Code, found in
Title XVIII-Damages that:

COMPENSATION FOR WORKMEN AND OTHER EMPLOYEES IN CASE OF

DEATH, INJURY OR ILLNESS IS REGULATED BY SPECIAL LAWS.

Compensation and damages are synonymous. In Esguerra vs. Muoz Palma, etc., et al., 104 Phil. 582,
586, Justice J.B.L. Reyes had said:

Petitioner also avers that compensation is not damages. This argument is but a play on
words. The term compensation' is used in the law (Act 3812 and Republic Act 772) in the
 sense of indemnity for damages suffered, being awarded for a personal injury caused or
aggravated by or in the course of employment. ...

By the very provisions of the Civil Code, it is a "special law", not the Code itself, which has to apply to
the complaint involved in the instant case. That "special law", in reference to the complaint, can be no
other than the Workmen's Compensation

Even assuming, without conceding, that an employee is entitled to an election of remedies, as the majority
rules, both options cannot be exercised simultaneously, and the exercise of one will preclude the exercise
of the other. The petitioners had already exercised their option to come under the Workmen's
Compensation Act, and they have already received compensation payable to them under that Act. Stated
differently, the remedy under the Workmen's Compensation Act had already become a "finished
transaction".

There are two considerations why it is believed petitioners should no longer be allowed to exercise the
option to sue under the Civil Code. In the first place, the proceedings under the Workmen's Compensation
Act have already become the law in regards to" the "election of remedies", because those proceedings had
become a "finished transaction".

In the second place, it should be plainly equitable that, if a person entitled to an "election of remedies"
makes a first election and accepts the benefits thereof, he should no longer be allowed to avail himself of
the second option. At the very least, if he wants to make a second election, in disregard of the first
election he has made, when he makes the second election he should surrender the benefits he had obtained
under the first election, This was not done in the case before the Court.

B.

'There is full concurrence on my part with the dissenting opinion of Mr. Justice Gutierrez upholding "the
exclusory provision of the Workmen's Compensation Act." I may further add:

1. The Workmen's Compensation Act (Act No. 3428) was approved on December 10, 1927 and took
effect on June 10, 1928. It was patterned from Minnesota and Hawaii statutes.

Act No. 3428 was adopted by the Philippine legislature, in Spanish and some sections of
the law were taken from the statutes of Minnesota and Hawaii, (Chapter 209 of the
Revised Laws of Hawaii, 1925). [Morabe & Inton, Workmen's Compensation Act, p. 2]

Under the Workmen's Compensation Act of Hawaii, when the Act is applicable, the remedy under the Act
is exclusive The following is stated in 1 Schneider Workmen's Compensation Text, pp. 266, 267.

Sec. 112. Hawaii

Statutory Synopsis. The act is compulsory as to employees in 'all industrial employment'

and employees of the territory and its political subdivisions. (Sections 7480-7481, S.S.,
Vol. 1, p. 713.)

Compensation is not payable when injury is due to employee's willful intention to injure
himself or another or to his intoxication. (Sec. 7482, S.S., p. 713.)
 When the act is applicable the remedy thereunder is exclusive (Sec. 7483, S.S., p. 714.)

2. In providing for exclusiveness of the remedy under our Workmen's Compensation Act, the Philippine
Legislature worded the first paragraph of Section 5 of the Act as follows:

SEC. 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 (Paragraphing and emphasis
supplied)

In regards to the intent of the Legislature under the foregoing provision:

A cardinal rule in the interpretation of statutes is that the meaning and intention of the
law-making body must be sought, first of all in the words of the statute itself, read and
considered in their natural, ordinary, commonly-accepted and most obvious
significations, according to good and approved usage and without resorting to forced or
subtle construction Courts, therefore, as a rule, cannot presume that the law-making body
does not know the meaning of words and the rules of grammar. Consequently, the
grammatical reading of a statute must be presumed to yield its correct sense. (Espino vs.
Cleofe 52 SCRA 92, 98) [Italics supplied]

3. The original second paragraph of Section 5 provided:

Employers contracting laborers in the Philippine Islands for work outside the same shall
stipulate with such laborers that the remedies prescribed by this Act shall apply
exclusively to injuries received outside the Islands through accidents happening in and
during the performance of the duties of the employment. (Italics supplied)

The use of the word "exclusively is a further confirmation of the exclusory provision of the Act, subject
only to exceptions which may be provided in the Act itself.

4. It might be mentioned that, within the Act itself, provision is made for remedies other than within the
Act itself. Thus, Section 6, in part, provides:

SEC. 6. Liability of third parties.-In case an employee suffers an injury for which
compensation is due under this Act by any other person besides his employer, it shall be
optional with such injured employee either to claim compensation from his employer,
under this Act, or sue such other person for damages, in accordance with law; ...
(Emphasis supplied)

If the legislative intent under the first paragraph of Section 5 were to allow the injured employee to sue
his employer under the Civil Code, the legislator could very easily have formulated the said first
paragraph of Section 5 according to the pattern of Section 6. That that was not done shows the legislative
intent not to allow any option to an employee to sue the employer under the Civil Code for injuries
compensable under the Act.

5. There should be no question but that the original first paragraph of Section 5 of the Workmen's
Compensation Act, formulated in 1927, provided that an injured worker or employee, or his heirs, if
entitled to compensation under the Act, cannot have independent recourse neither to the Civil Code nor to
any other law relative to the liability of the employer. After 1927, there were occasions when the
legislator had the opportunity to amend the first paragraph of Section 5 such that the remedies under the
Act would not be exclusive; yet, the legislator refrained from doing so. That shows the legislatives
continuing intent to maintain the exclusory provision of the first paragraph of Section 5 unless otherwise
provided in the Act itself.

(a) The original second paragraph of Section 5 provided:

Employers contracting laborers in the Philippine Islands for work outside the same shall
stipulate with such laborers that the remedies prescribed by this Act shall apply
(exclusively) to injuries received outside the Islands through accidents happening in and
during the performance of the duties of the employment (and all service contracts made
in the manner prescribed in this section be presumed to include such agreement).

On June 20, 1952, through RA 772, the foregoing second paragraph was amended with the elimination of
the underlined words in parentheses, and the addition of this sentence at the end of the paragraph:

Such stipulation shall not prejudice the right of the laborers to the benefits of the
Workmen's Compensation Law of the place where the accident occurs, should such law
be more favorable to them. (Emphasis supplied)

It will be seen that, within the Act itself, the exclusory character of the Act was amended. At that time, if
he had so desired, the legislator could have amended the first paragraph of Section 5 so that the employee
would have the option to sue the employer under the Act, or under the Civil Code, should the latter be
more favorable to him.

(b) The Workmen's Compensation Act, which took effect in 1927, grants compensation to an injured
employee without regard to the presence or absence of negligence on the part of the employer. The
compensation is deemed an expense chargeable to the industry (Murillo vs. Mendoza, 66 Phil. 689
[1938]).

In time, it must have been thought that it was inequitable to have the amount of compensation, caused by
negligence on the part of the employer, to be the same amount payable when the employer was not
negligent. Based on that thinking, Section 4-A 1 was included into the Act, on June 20, 1952, through RA
772. Said Section 4-A increased the compensation payable by 50% in case there was negligence on the
part of the employer. That additional section evidenced the intent of the legislator not to give an option to
an employee, injured with negligence on the part of the employer, to sue the latter under the provisions of
the Civil Code.

On June 20, 1964, Section 4-A was amended (insubstantially) by RA 4119. The legislator was again
given the opportunity to provide, but he did not, the option to an employee to sue under the Act or under
the Civil Code.
When a Court gives effect to a statute not in accordance with the intent of the law-maker, the Court is
unjustifiably legislating.

It is in view of the foregoing that I vote for affirmation of the trial Court's dismissal of the Complaint.

GUTIERREZ, JR., J., dissenting:

To grant the petition and allow the victims of industrial accidents to file damages suits based on torts
would be a radical innovation not only contrary to the express provisions of the Workmen's
Compensation Act but a departure from the principles evolved in the long history of workmen's
compensation. At the very least, it should be the legislature and not this Court which should remove the
exclusory provision of the Workmen's Compensation Act, a provision reiterated in the present Labor
Code on employees' compensation.

Workmen's compensation evolved to remedy the evils associated with the situation in the early years of
the industrial revolution when injured workingmen had to rely on damage suits to get recompense.

Before workmen's compensation, an injured worker seeking damages would have to prove in a tort suit
that his employer was either negligent or in bad faith, that his injury was caused by the employer and not
a fellow worker, and that he was not guilty of contributory negligence. The employer could employ not
only his wealth in defeating the claim for damages but a host of common law defenses available to him as
well. The worker was supposed to know what he entered into when he accepted employment. As stated in
the leading case of Priestley u. Fowler (3 M. & W. 1, 150 Reprint 1030) decided in 1837 "the mere
relation of the master and the servant never can imply an obligation on the part of the master to take more
care of the servant than he may reasonably be expected to do of himself." By entering into a contract of
employment, the worker was deemed to accept the risks of employment that he should discover and guard
against himself.

The problems associated with the application of the fellow servant rule, the assumption of risk doctrine,
the principle of contributory negligence, and the many other defenses so easily raised in protracted
damage suits illustrated the need for a system whereby workers had only to prove the fact of covered
employment and the fact of injury arising from employment in order to be compensated.

The need for a compensation scheme where liability is created solely by statute and made compulsory and
where the element of fault-either the fault of the employer or the fault of the employee-disregarded
became obvious. Another objective was to have simplified, expeditious, inexpensive, and non-litigious
procedures so that victims of industrial accidents could more readily, if not automatically, receive
compensation for work-related injuries.

Inspite of common law defenses to defeat a claim being recognized, employers' liability acts were a major
step in the desired direction. However, employers liability legislation proved inadequate. Legislative
reform led to the workmen's compensation.

I cite the above familiar background because workmen's compensation represents a compromise. In return
for the near certainty of receiving a sum of money fixed by law, the injured worker gives up the right to
subject the employer to a tort suit for huge amounts of damages. Thus, liability not only disregards the
element of fault but it is also a pre- determined amount based on the wages of the injured worker and in
certain cases, the actual cost of rehabilitation. The worker does not receive the total damages for his pain
and suffering which he could otherwise claim in a civil suit. The employer is required to act swiftly on
compensation claims. An administrative agency supervises the program. And because the overwhelming
mass of workingmen are benefited by the compensation system, individual workers who may want to sue
for big amounts of damages must yield to the interests of their entire working class.

The nature of the compensation principle is explained as follows:

An appreciation of the nature of the compensation principle is essential to an

understanding of the acts and the cases interpreting them.

By the turn of the century it was apparent that the toll of industrial accidents of both the
avoidable and unavoidable variety had become enormous, and government was faced
with the problem of who was to pay for the human wreckage wrought by the dangers of
modern industry. If the accident was avoidable and could be attributed to the carelessness
of the employer, existing tort principles offered some measure of redress. Even here,
however, the woeful inadequacy of the fault principle was manifest. The uncertainty of
the outcome of torts litigation in court placed the employee at a substantial disadvantage.
So long as liability depended on fault there could be no recovery until the finger of blame
had been pointed officially at the employer or his agents. In most cases both the facts and
the law were uncertain. The witnesses, who were usually fellow workers of the victim,
were torn between friendship or loyalty to their class, on the one hand, and fear of
reprisal by the employer, on the other. The expense and delay of litigation often prompted
the injured employee to accept a compromise settlement for a fraction of the full value of
his claim. Even if suit were successfully prosecuted, a large share of the proceeds of the
judgment were exacted as contingent fees by counsel. Thus the employer against whom
judgment was cast often paid a substantial damage bill, while only a part of this enured to
the benefit of the injured employee or his dependents. The employee's judgment was
nearly always too little and too late.

xxx xxx xxx

Workmen's Compensation rests upon the economic principle that those persons who
enjoy the product of a business- whether it be in the form of goods or services- should
ultimately bear the cost of the injuries or deaths that are incident to the manufacture,
preparation and distribution of the product. ...

xxx xxx xxx

Under this approach the element of personal fault either disappears entirely or is
subordinated to broader economic considerations. The employer absorbs the cost of
accident loss only initially; it is expected that this cost will eventually pass down the
stream of commerce in the form of increase price until it is spread in dilution among the
ultimate consumers. So long as each competing unit in a given industry is uniformly
affected, no producer can gain any substantial competitive advantage or suffer any
appreciable loss by reason of the general adoption of the compensation principle.

In order that the compensation principle may operate properly and with fairness to all
parties it is essential that the anticipated accident cost be predictable and that it be fixed at
a figure that will not disrupt too violently the traffic in the product of the industry
affected. Thus predictability and moderateness of cost are necessary from the broad
economic viewpoint. ....
 Compensation, then, differs from the conventional damage suit in two important respects:
Fault on the part of either employer or employee is eliminated; and compensation payable
according to a definitely limited schedule is substituted for damages. All compensation
acts alike work these two major changes, irrespective of how they may differ in other
particulars.

Compensation, when regarded from the viewpoint of employer and employee represents
a compromise in which each party surrenders certain advantages in order to gain others
which are of more importance both to him and to society. The employer gives up the
immunity he otherwise would enjoy in cases where he is not at fault, and the employee
surrenders his former right to full damages and accepts instead a more modest claim for
bare essentials, represented by compensation.

The importance of the compromise character of compensation cannot be overemphasized.

The statutes vary a great deal with reference to the proper point of balance. The amount
of weekly compensation payments and the length of the period during which
compensation is to be paid are matters concerning which the acts differ considerably. The
interpretation of any compensation statute will be influenced greatly by the court's
reaction to the basic point of compromise established in the Act. If the court feels that the
basic compromise unduly favors the employer, it will be tempted to restore what it
regards as a proper balance by adopting an interpretation that favors the worker. In this
way, a compensation act drawn in a spirit of extreme conservatism may be transformed
by a sympathetic court into a fairly liberal instrument; and conversely, an act that greatly
favors the laborer may be so interpreted by the courts that employers can have little
reason to complain. Much of the unevenness and apparent conflict in compensation
decisions throughout the various jurisdictions must be attributed to this." (Malone &
Plant, Workmen's Compensation American Casebook Series, pp. 63-65).

The schedule of compensation, the rates of payments, the compensable injuries and diseases, the
premiums paid by employers to the present system, the actuarial stability of the trust fund and many other
interrelated parts have all been carefully studied before the integrated scheme was enacted in to law. We
have a system whose parts must mesh harmonious with one another if it is to succeed. The basic theory
has to be followed.

If this Court disregards this totality of the scheme and in a spirit of generosity recasts some parts of the
system without touching the related others, the entire structure is endangered. For instance, I am
personally against stretching the law and allowing payment of compensation for contingencies never
envisioned to be compensable when the law was formulated. Certainly, only harmful results to the
principle of workmen's compensation can arise if workmen, whom the law allows to receive employment
compensation, can still elect to file damage suits for industrial accidents. It was precisely for this reason
that Section 5 of the Workmen's Compensation Act, which reads:

SEC. 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. ...

Article 173 of the labor Code also provides:

 ART. 173. Exclusivenesss 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.

I am against the Court assuming the role of legislator in a matter calling for actuarial studies and public
hearings. If employers already required to contribute to the State Insurance Fund will still have to bear the
cost of damage suits or get insurance for that purpose, a major study will be necessary. The issue before
us is more far reaching than the interests of the poor victims and their families. All workers covered by
workmen's compensation and all employers who employ covered employees are affected. Even as I have
deepest sympathies for the victims, I regret that I am constrained to dissent from the majority opinion.

Separate Opinions

MELENCIO-HERRERA, J., dissenting:

This case involves a complaint for damages for the death of five employees of PHILEX Mining
Corporation under the general provisions of the Civil Code. The Civil Code itself, however, provides for
its non-applicability to the complaint. It is specifically provided in Article 2196 of the Code, found in
Title XVIII-Damages that:

COMPENSATION FOR WORKMEN AND OTHER EMPLOYEES IN CASE OF

DEATH, INJURY OR ILLNESS IS REGULATED BY SPECIAL LAWS.

Compensation and damages are synonymous. In Esguerra vs. Muoz Palma, etc., et al., 104 Phil. 582,
586, Justice J.B.L. Reyes had said:

Petitioner also avers that compensation is not damages. This argument is but a play on
words. The term compensation' is used in the law (Act 3812 and Republic Act 772) in the
sense of indemnity for damages suffered, being awarded for a personal injury caused or
aggravated by or in the course of employment. ...

By the very provisions of the Civil Code, it is a "special law", not the Code itself, which has to apply to
the complaint involved in the instant case. That "special law", in reference to the complaint, can be no
other than the Workmen's Compensation

Even assuming, without conceding, that an employee is entitled to an election of remedies, as the majority
rules, both options cannot be exercised simultaneously, and the exercise of one will preclude the exercise
of the other. The petitioners had already exercised their option to come under the Workmen's
Compensation Act, and they have already received compensation payable to them under that Act. Stated
differently, the remedy under the Workmen's Compensation Act had already become a "finished
transaction".

There are two considerations why it is believed petitioners should no longer be allowed to exercise the
option to sue under the Civil Code. In the first place, the proceedings under the Workmen's Compensation
Act have already become the law in regards to" the "election of remedies", because those proceedings had
become a "finished transaction".

In the second place, it should be plainly equitable that, if a person entitled to an "election of remedies"
makes a first election and accepts the benefits thereof, he should no longer be allowed to avail himself of
the second option. At the very least, if he wants to make a second election, in disregard of the first
election he has made, when he makes the second election he should surrender the benefits he had obtained
under the first election, This was not done in the case before the Court.

B.

'There is full concurrence on my part with the dissenting opinion of Mr. Justice Gutierrez upholding "the
exclusory provision of the Workmen's Compensation Act." I may further add:

1. The Workmen's Compensation Act (Act No. 3428) was approved on December 10, 1927 and took
effect on June 10, 1928. It was patterned from Minnesota and Hawaii statutes.

Act No. 3428 was adopted by the Philippine legislature, in Spanish and some sections of
the law were taken from the statutes of Minnesota and Hawaii, (Chapter 209 of the
Revised Laws of Hawaii, 1925). [Morabe & Inton, Workmen's Compensation Act, p. 2]

Under the Workmen's Compensation Act of Hawaii, when the Act is applicable, the remedy under the Act
is exclusive The following is stated in 1 Schneider Workmen's Compensation Text, pp. 266, 267.

Sec. 112. Hawaii

Statutory Synopsis. The act is compulsory as to employees in 'all industrial employment'

and employees of the territory and its political subdivisions. (Sections 7480-7481, S.S.,
Vol. 1, p. 713.)

Compensation is not payable when injury is due to employee's willful intention to injure
himself or another or to his intoxication. (Sec. 7482, S.S., p. 713.)

When the act is applicable the remedy thereunder is exclusive (Sec. 7483, S.S., p. 714.)

2. In providing for exclusiveness of the remedy under our Workmen's Compensation Act, the Philippine
Legislature worded the first paragraph of Section 5 of the Act as follows:

SEC. 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 (Paragraphing and emphasis
supplied)

In regards to the intent of the Legislature under the foregoing provision:

A cardinal rule in the interpretation of statutes is that the meaning and intention of the
law-making body must be sought, first of all in the words of the statute itself, read and
considered in their natural, ordinary, commonly-accepted and most obvious
significations, according to good and approved usage and without resorting to forced or
subtle construction Courts, therefore, as a rule, cannot presume that the law-making body
does not know the meaning of words and the rules of grammar. Consequently, the
grammatical reading of a statute must be presumed to yield its correct sense. (Espino vs.
Cleofe 52 SCRA 92, 98) [Italics supplied]

3. The original second paragraph of Section 5 provided:

Employers contracting laborers in the Philippine Islands for work outside the same shall
stipulate with such laborers that the remedies prescribed by this Act shall apply
exclusively to injuries received outside the Islands through accidents happening in and
during the performance of the duties of the employment. (Italics supplied)

The use of the word "exclusively is a further confirmation of the exclusory provision of the Act, subject
only to exceptions which may be provided in the Act itself.

4. It might be mentioned that, within the Act itself, provision is made for remedies other than within the
Act itself. Thus, Section 6, in part, provides:

SEC. 6. Liability of third parties.-In case an employee suffers an injury for which
compensation is due under this Act by any other person besides his employer, it shall be
optional with such injured employee either to claim compensation from his employer,
under this Act, or sue such other person for damages, in accordance with law; ...
(Emphasis supplied)

If the legislative intent under the first paragraph of Section 5 were to allow the injured employee to sue
his employer under the Civil Code, the legislator could very easily have formulated the said first
paragraph of Section 5 according to the pattern of Section 6. That that was not done shows the legislative
intent not to allow any option to an employee to sue the employer under the Civil Code for injuries
compensable under the Act.

5. There should be no question but that the original first paragraph of Section 5 of the Workmen's
Compensation Act, formulated in 1927, provided that an injured worker or employee, or his heirs, if
entitled to compensation under the Act, cannot have independent recourse neither to the Civil Code nor to
any other law relative to the liability of the employer. After 1927, there were occasions when the
legislator had the opportunity to amend the first paragraph of Section 5 such that the remedies under the
Act would not be exclusive; yet, the legislator refrained from doing so. That shows the legislatives
continuing intent to maintain the exclusory provision of the first paragraph of Section 5 unless otherwise
provided in the Act itself.
(a) The original second paragraph of Section 5 provided:

Employers contracting laborers in the Philippine Islands for work outside the same shall
stipulate with such laborers that the remedies prescribed by this Act shall apply
(exclusively) to injuries received outside the Islands through accidents happening in and
during the performance of the duties of the employment (and all service contracts made
in the manner prescribed in this section be presumed to include such agreement).

On June 20, 1952, through RA 772, the foregoing second paragraph was amended with the elimination of
the underlined words in parentheses, and the addition of this sentence at the end of the paragraph:

Such stipulation shall not prejudice the right of the laborers to the benefits of the
Workmen's Compensation Law of the place where the accident occurs, should such law
be more favorable to them. (Emphasis supplied)

It will be seen that, within the Act itself, the exclusory character of the Act was amended. At that time, if
he had so desired, the legislator could have amended the first paragraph of Section 5 so that the employee
would have the option to sue the employer under the Act, or under the Civil Code, should the latter be
more favorable to him.

(b) The Workmen's Compensation Act, which took effect in 1927, grants compensation to an injured
employee without regard to the presence or absence of negligence on the part of the employer. The
compensation is deemed an expense chargeable to the industry (Murillo vs. Mendoza, 66 Phil. 689
[1938]).

In time, it must have been thought that it was inequitable to have the amount of compensation, caused by
negligence on the part of the employer, to be the same amount payable when the employer was not
negligent. Based on that thinking, Section 4-A 1 was included into the Act, on June 20, 1952, through RA
772. Said Section 4-A increased the compensation payable by 50% in case there was negligence on the
part of the employer. That additional section evidenced the intent of the legislator not to give an option to
an employee, injured with negligence on the part of the employer, to sue the latter under the provisions of
the Civil Code.

On June 20, 1964, Section 4-A was amended (insubstantially) by RA 4119. The legislator was again
given the opportunity to provide, but he did not, the option to an employee to sue under the Act or under
the Civil Code.

When a Court gives effect to a statute not in accordance with the intent of the law-maker, the Court is
unjustifiably legislating.

It is in view of the foregoing that I vote for affirmation of the trial Court's dismissal of the Complaint.

GUTIERREZ, JR., J., dissenting:

To grant the petition and allow the victims of industrial accidents to file damages suits based on torts
would be a radical innovation not only contrary to the express provisions of the Workmen's
Compensation Act but a departure from the principles evolved in the long history of workmen's
compensation. At the very least, it should be the legislature and not this Court which should remove the
exclusory provision of the Workmen's Compensation Act, a provision reiterated in the present Labor
Code on employees' compensation.
Workmen's compensation evolved to remedy the evils associated with the situation in the early years of
the industrial revolution when injured workingmen had to rely on damage suits to get recompense.

Before workmen's compensation, an injured worker seeking damages would have to prove in a tort suit
that his employer was either negligent or in bad faith, that his injury was caused by the employer and not
a fellow worker, and that he was not guilty of contributory negligence. The employer could employ not
only his wealth in defeating the claim for damages but a host of common law defenses available to him as
well. The worker was supposed to know what he entered into when he accepted employment. As stated in
the leading case of Priestley u. Fowler (3 M. & W. 1, 150 Reprint 1030) decided in 1837 "the mere
relation of the master and the servant never can imply an obligation on the part of the master to take more
care of the servant than he may reasonably be expected to do of himself." By entering into a contract of
employment, the worker was deemed to accept the risks of employment that he should discover and guard
against himself.

The problems associated with the application of the fellow servant rule, the assumption of risk doctrine,
the principle of contributory negligence, and the many other defenses so easily raised in protracted
damage suits illustrated the need for a system whereby workers had only to prove the fact of covered
employment and the fact of injury arising from employment in order to be compensated.

The need for a compensation scheme where liability is created solely by statute and made compulsory and
where the element of fault-either the fault of the employer or the fault of the employee-disregarded
became obvious. Another objective was to have simplified, expeditious, inexpensive, and non-litigious
procedures so that victims of industrial accidents could more readily, if not automatically, receive
compensation for work-related injuries.

Inspite of common law defenses to defeat a claim being recognized, employers' liability acts were a major
step in the desired direction. However, employers liability legislation proved inadequate. Legislative
reform led to the workmen's compensation.

I cite the above familiar background because workmen's compensation represents a compromise. In return
for the near certainty of receiving a sum of money fixed by law, the injured worker gives up the right to
subject the employer to a tort suit for huge amounts of damages. Thus, liability not only disregards the
element of fault but it is also a pre- determined amount based on the wages of the injured worker and in
certain cases, the actual cost of rehabilitation. The worker does not receive the total damages for his pain
and suffering which he could otherwise claim in a civil suit. The employer is required to act swiftly on
compensation claims. An administrative agency supervises the program. And because the overwhelming
mass of workingmen are benefited by the compensation system, individual workers who may want to sue
for big amounts of damages must yield to the interests of their entire working class.

The nature of the compensation principle is explained as follows:

An appreciation of the nature of the compensation principle is essential to an

understanding of the acts and the cases interpreting them.

By the turn of the century it was apparent that the toll of industrial accidents of both the
avoidable and unavoidable variety had become enormous, and government was faced
with the problem of who was to pay for the human wreckage wrought by the dangers of
modern industry. If the accident was avoidable and could be attributed to the carelessness
of the employer, existing tort principles offered some measure of redress. Even here,
however, the woeful inadequacy of the fault principle was manifest. The uncertainty of
the outcome of torts litigation in court placed the employee at a substantial disadvantage.
So long as liability depended on fault there could be no recovery until the finger of blame
had been pointed officially at the employer or his agents. In most cases both the facts and
the law were uncertain. The witnesses, who were usually fellow workers of the victim,
were torn between friendship or loyalty to their class, on the one hand, and fear of
reprisal by the employer, on the other. The expense and delay of litigation often prompted
the injured employee to accept a compromise settlement for a fraction of the full value of
his claim. Even if suit were successfully prosecuted, a large share of the proceeds of the
judgment were exacted as contingent fees by counsel. Thus the employer against whom
judgment was cast often paid a substantial damage bill, while only a part of this enured to
the benefit of the injured employee or his dependents. The employee's judgment was
nearly always too little and too late.

xxx xxx xxx

Workmen's Compensation rests upon the economic principle that those persons who
enjoy the product of a business- whether it be in the form of goods or services- should
ultimately bear the cost of the injuries or deaths that are incident to the manufacture,
preparation and distribution of the product. ...

xxx xxx xxx

Under this approach the element of personal fault either disappears entirely or is
subordinated to broader economic considerations. The employer absorbs the cost of
accident loss only initially; it is expected that this cost will eventually pass down the
stream of commerce in the form of increase price until it is spread in dilution among the
ultimate consumers. So long as each competing unit in a given industry is uniformly
affected, no producer can gain any substantial competitive advantage or suffer any
appreciable loss by reason of the general adoption of the compensation principle.

In order that the compensation principle may operate properly and with fairness to all
parties it is essential that the anticipated accident cost be predictable and that it be fixed at
a figure that will not disrupt too violently the traffic in the product of the industry
affected. Thus predictability and moderateness of cost are necessary from the broad
economic viewpoint. ....

Compensation, then, differs from the conventional damage suit in two important respects:
Fault on the part of either employer or employee is eliminated; and compensation payable
according to a definitely limited schedule is substituted for damages. All compensation
acts alike work these two major changes, irrespective of how they may differ in other
particulars.

Compensation, when regarded from the viewpoint of employer and employee represents
a compromise in which each party surrenders certain advantages in order to gain others
which are of more importance both to him and to society. The employer gives up the
immunity he otherwise would enjoy in cases where he is not at fault, and the employee
surrenders his former right to full damages and accepts instead a more modest claim for
bare essentials, represented by compensation.
 The importance of the compromise character of compensation cannot be overemphasized.
The statutes vary a great deal with reference to the proper point of balance. The amount
of weekly compensation payments and the length of the period during which
compensation is to be paid are matters concerning which the acts differ considerably. The
interpretation of any compensation statute will be influenced greatly by the court's
reaction to the basic point of compromise established in the Act. If the court feels that the
basic compromise unduly favors the employer, it will be tempted to restore what it
regards as a proper balance by adopting an interpretation that favors the worker. In this
way, a compensation act drawn in a spirit of extreme conservatism may be transformed
by a sympathetic court into a fairly liberal instrument; and conversely, an act that greatly
favors the laborer may be so interpreted by the courts that employers can have little
reason to complain. Much of the unevenness and apparent conflict in compensation
decisions throughout the various jurisdictions must be attributed to this." (Malone &
Plant, Workmen's Compensation American Casebook Series, pp. 63-65).

The schedule of compensation, the rates of payments, the compensable injuries and diseases, the
premiums paid by employers to the present system, the actuarial stability of the trust fund and many other
interrelated parts have all been carefully studied before the integrated scheme was enacted in to law. We
have a system whose parts must mesh harmonious with one another if it is to succeed. The basic theory
has to be followed.

If this Court disregards this totality of the scheme and in a spirit of generosity recasts some parts of the
system without touching the related others, the entire structure is endangered. For instance, I am
personally against stretching the law and allowing payment of compensation for contingencies never
envisioned to be compensable when the law was formulated. Certainly, only harmful results to the
principle of workmen's compensation can arise if workmen, whom the law allows to receive employment
compensation, can still elect to file damage suits for industrial accidents. It was precisely for this reason
that Section 5 of the Workmen's Compensation Act, which reads:

SEC. 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. ...

Article 173 of the labor Code also provides:

ART. 173. Exclusivenesss 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.

I am against the Court assuming the role of legislator in a matter calling for actuarial studies and public
hearings. If employers already required to contribute to the State Insurance Fund will still have to bear the
cost of damage suits or get insurance for that purpose, a major study will be necessary. The issue before
us is more far reaching than the interests of the poor victims and their families. All workers covered by
workmen's compensation and all employers who employ covered employees are affected. Even as I have
deepest sympathies for the victims, I regret that I am constrained to dissent from the majority opinion.
Footnotes

1 SEC. 4-A. Right to additional compensation.- In case of the employee's death, injury or
sickness due to the failure of the to comply with any law, or with any order, rule or
regulation of the Workmen's Compensation Commission or the Bureau of Labor
Standards or should the employer violate the provisions of Republic Act Numbered Six
hundred seventy-nine and its amendments or fail to install and maintain safety
appliances, or take other precautions for the prevention of accidents or occupational
disease, he shall be liable to pay an additional compensation equal to fifty per centum of
the compensation fixed in this Act.

STATUTORY CASESCase Title:

G.R. No. L-19650 (September 29, 1966)Caltex (Philippines), Inc. vs. Enrico Palomar in his capacity as
The Postmaster General
1) Facts
The case before us now is a petition for declaratory relief against Postmaster General EnricoPalomar,
parying that judgment be rendered declaring its Caltex Hooded Pump Contest notto be violative of
the Postal Law, and ordering respondent to allow petitioner the use of the mailsto bring the contest to the
attention of the public.In 1960, Caltex launched a promotional scheme called Caltex Hooded Pump
Contest?which calls for participants to estimate the actual number of liters a hooded gas pump at
eachCaltex station will dispense during a specified period.? The contest is open to all motor vehicle
owners and/or licensed drivres?. There is neither a fee or consideration required nor a purchase required
to be made. The forms are available upon request at each Caltex station andthere is also a sealed can
where accomplished entry stubs may be deposited.Caltex wishes to use mails amongst the media for
publicizing about the contest, thus, Caltex sentrepresentatives to the postal authorities for advance
clearing for the use of mails for the contest.However, the postal authorities denied their request in view of
sections 1954 (a), 1982, and 1983of the Revised Administrative Code (Anti-lottery provisions of the
Postal Law), which prohibitsthe use of mail in conveying any information concerning non-mailable
schemes, such as lottery,gift enterprise, or similar scheme.Caltex sought for a reconsideration and stressed
that there was no consideration involved in the part of the contestant(s) but the Postmaster General
maintained their view and even threatenedCaltex that if the contest was conducted, a fraud order will
have to be issued against it(Caltex) and all its representatives?. This leads to Caltexs filing of this
petition for declaratoryrelief.The court ruled that the petitioner does not violate the Postal Law
and the respondent has noright to bar the public distribution or said rules by the mails?. The respondent
then appealed.
2) Issue(s)
a) Whether or not the petition states a sufficient cause of action for declaratory relief? b) Whether or not
the proposed Caltex Hooded Pump Contest? violates the Postal Law?
3) Ruling

Recapitulating, we hold that the petition herein states a sufficient cause of action for declaratoryrelief, and
that the Caltex Hooded Pump Contest as described in the rules submitted by theappellee does not
transgress the provisions of the Postal Law.ACCORDINGLY, the judgment appealed from is affirmed.
No costs.
4) Ratio
Declaratory Relief is the interpretation of several constitutional provisions. Based on Section 1Rule 63 of
the Rules of Court, an action for declaratory relief should be filed by a personinterested under a deed,
a will, a contract or other written instrument, and whose rights areaffected by a statute, an executive
order, a regulation or an ordinance.
Requisites for Declaratory Relief:
- There is justiciable controversy- The controversy is between persons whose interests are adverse- The
party seeking the relief has a legal interest in the controversy- The issue is ripe for judicial determination*
The Caltex Hooded Pump Contest? is a mere gratuitous distribution of property bychance?.
It does not qualify as a lottery due to the lack of consideration. An act to be deemedas a lottery must
constitute a (1) prize, (2) chance, and (3) consideration. The participants are notrequired to do anything or
purchase anything from Caltex in order to participate in the contest.The true test for having consideration
is whether the participant pays a valuableconsideration for the chance, and not whether those
conducting the enterprise receive somethingof value in return for the distribution of the prize.?

CASE #8

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 108763 February 13, 1997

REPUBLIC OF THE PHILIPPINES,

vs.
COURT OF APPEALS and RORIDEL OLAVIANO MOLINA, respondents.

PANGANIBAN, J.:

The Family Code of the Philippines provides an entirely new ground (in addition to those
enumerated in the Civil Code) to assail the validity of a marriage, namely, "psychological
incapacity." Since the Code's effectivity, our courts have been swamped with various petitions to
declare marriages void based on this ground. Although this Court had interpreted the meaning of
psychological incapacity in the recent case of Santos vs. Court of Appeals, still many judges and
lawyers find difficulty in applying said novel provision in specific cases. In the present case and in
the context of the herein assailed Decision of the Court of Appeals, the Solicitor General has
labelled exaggerated to be sure but nonetheless expressive of his frustration Article 36 as the
"most liberal divorce procedure in the world." Hence, this Court in addition to resolving the
present case, finds the need to lay down specific guidelines in the interpretation and application of
Article 36 of the Family Code.

Before us is a petition for review on certiorari under Rule 45 challenging the January 25, 1993
Decision 1of the Court of Appeals 2 in CA-G.R. CV No. 34858 affirming in toto the May 14, 1991
decision of the Regional Trial Court of La Trinidad, 3 Benguet, which declared the marriage of
respondent Roridel Olaviano Molina to Reynaldo Molina void ab initio, on the ground of
"psychological incapacity" under Article 36 of the Family Code.

The Facts
This case was commenced on August 16, 1990 with the filing by respondent Roridel O. Molina of a
verified petition for declaration of nullity of her marriage to Reynaldo Molina. Essentially, the
petition alleged that Roridel and Reynaldo were married on April 14, 1985 at the San Agustin
Church 4 in Manila; that a son, Andre O. Molina was born; that after a year of marriage, Reynaldo
showed signs of "immaturity and irresponsibility" as a husband and a father since he preferred to
spend more time with his peers and friends on whom he squandered his money; that he depended
on his parents for aid and assistance, and was never honest with his wife in regard to their finances,
resulting in frequent quarrels between them; that sometime in February 1986, Reynaldo was
relieved of his job in Manila, and since then Roridel had been the sole breadwinner of the family;
that in October 1986 the couple had a very intense quarrel, as a result of which their relationship
was estranged; that in March 1987, Roridel resigned from her job in Manila and went to live with
her parents in Baguio City; that a few weeks later, Reynaldo left Roridel and their child, and had
since then abandoned them; that Reynaldo had thus shown that he was psychologically incapable of
complying with essential marital obligations and was a highly immature and habitually quarrel
some individual who thought of himself as a king to be served; and that it would be to the couple's
best interest to have their marriage declared null and void in order to free them from what
appeared to be an incompatible marriage from the start.

In his Answer filed on August 28, 1989, Reynaldo admitted that he and Roridel could no longer live
together as husband and wife, but contended that their misunderstandings and frequent quarrels
were due to (1) Roridel's strange behavior of insisting on maintaining her group of friends even
after their marriage; (2) Roridel's refusal to perform some of her marital duties such as cooking
meals; and (3) Roridel's failure to run the household and handle their finances.

During the pre-trial on October 17, 1990, the following were stipulated:

1. That the parties herein were legally married on April 14, 1985 at the Church of
St. Augustine, Manila;

2. That out of their marriage, a child named Albert Andre Olaviano Molina was
born on July 29, 1986;

3. That the parties are separated-in-fact for more than three years;

4. That petitioner is not asking support for her and her child;

5. That the respondent is not asking for damages;

6. That the common child of the parties is in the custody of the petitioner wife.

Evidence for herein respondent wife consisted of her own testimony and that of her friends
Rosemarie Ventura and Maria Leonora Padilla as well as of Ruth G. Lalas, a social worker, and of
Dr. Teresita Hidalgo-Sison, a psychiatrist of the Baguio General Hospital and Medical Center. She
also submitted documents marked as Exhibits "A" to "E-1." Reynaldo did not present any
evidence as he appeared only during the pre-trial conference.

On May 14, 1991, the trial court rendered judgment declaring the marriage void. The appeal of
petitioner was denied by the Court of Appeals which affirmed in toto the RTC's decision. Hence,
the present recourse.
 The Issue

In his petition, the Solicitor General insists that "the Court of Appeals made an erroneous and
incorrect interpretation of the phrase 'psychological incapacity' (as provided under Art. 36 of the
Family Code) and made an incorrect application thereof to the facts of the case," adding that the
appealed Decision tended "to establish in effect the most liberal divorce procedure in the world
which is anathema to our culture."

In denying the Solicitor General's appeal, the respondent Court relied 5 heavily on the trial court's
findings "that the marriage between the parties broke up because of their opposing and conflicting
personalities." Then, it added it sown opinion that "the Civil Code Revision Committee (hereinafter
referred to as Committee) intended to liberalize the application of our civil laws on personal and
family rights. . . ." It concluded that:

As ground for annulment of marriage, We view psychologically incapacity as a

broad range of mental and behavioral conduct on the part of one spouse indicative
of how he or she regards the marital union, his or her personal relationship with the
other spouse, as well as his or her conduct in the long haul for the attainment of the
principal objectives of marriage. If said conduct, observed and considered as a
whole, tends to cause the union to self-destruct because it defeats the very objectives
of marriage, then there is enough reason to leave the spouses to their individual
fates.

In the case at bar, We find that the trial judge committed no indiscretion in
analyzing and deciding the instant case, as it did, hence, We find no cogent reason to
disturb the findings and conclusions thus made.

Respondent, in her Memorandum, adopts these discussions of the Court of Appeals.

The petitioner, on the other hand, argues that "opposing and conflicting personalities" is not
equivalent to psychological incapacity, explaining that such ground "is not simply the neglect by the
parties to the marriage of their responsibilities and duties, but a defect in their psychological nature
which renders them incapable of performing such marital responsibilities and duties."

The Court's Ruling

The petition is meritorious.

In Leouel Santos vs. Court of Appeals 6 this Court, speaking thru Mr. Justice Jose C. Vitug, ruled
that "psychological incapacity should refer to no less than a mental (nor physical) incapacity . . .
and that (t)here 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
psychologic condition must exist at the time the marriage is celebrated." Citing Dr. Gerardo
Veloso, a former presiding judge of the Metropolitan Marriage Tribunal of the Catholic
Archdiocese of Manila, 7 Justice Vitug wrote that "the psychological incapacity must be
characterized by (a) gravity, (b) juridical antecedence, and (c) incurability."

On the other hand, in the present case, there is no clear showing to us that the psychological defect
spoken of is an incapacity. It appears to us to be more of a "difficulty," if not outright "refusal" or
"neglect" in the performance of some marital obligations. Mere showing of "irreconciliable
differences" and "conflicting personalities" in no wise constitutes psychological incapacity. It is not
enough to prove that the parties failed to meet their responsibilities and duties as married persons;
it is essential that they must be shown to be incapable of doing so, due to some psychological (nor
physical) illness.

The evidence adduced by respondent merely showed that she and her husband could nor get along
with each other. There had been no showing of the gravity of the problem; neither its juridical
antecedence nor its incurability. The expert testimony of Dr. Sison showed no incurable psychiatric
disorder but only incompatibility, not psychological incapacity. Dr. Sison testified: 8

COURT

Q It is therefore the recommendation of the psychiatrist based on

your findings that it is better for the Court to annul (sic) the
marriage?

A Yes, Your Honor.

Q There is no hope for the marriage?

A There is no hope, the man is also living with another woman.

Q Is it also the stand of the psychiatrist that the parties are

psychologically unfit for each other but they are psychologically fit
with other parties?

A Yes, Your Honor.

Q Neither are they psychologically unfit for their professions?

A Yes, Your Honor.

The Court has no more questions.

In the case of Reynaldo, there is no showing that his alleged personality traits were constitutive of
psychological incapacity existing at the time of marriage celebration. While some effort was made
to prove that there was a failure to fulfill pre-nuptial impressions of "thoughtfulness and
gentleness" on Reynaldo's part of being "conservative, homely and intelligent" on the part of
Roridel, such failure of expectation is nor indicative of antecedent psychological incapacity. If at all,
it merely shows love's temporary blindness to the faults and blemishes of the beloved.

During its deliberations, the Court decided to go beyond merely ruling on the facts of this case vis-
a-visexisting law and jurisprudence. In view of the novelty of Art. 36 of the Family Code and the
difficulty experienced by many trial courts interpreting and applying it, the Court decided to invite
two amici curiae, namely, the Most Reverend Oscar V. Cruz, 9 Vicar Judicial (Presiding Judge) of
the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, and Justice
Ricardo C. Puno, 10 a member of the Family Code Revision Committee. The Court takes this
occasion to thank these friends of the Court for their informative and interesting discussions during
the oral argument on December 3, 1996, which they followed up with written memoranda.

From their submissions and the Court's own deliberations, the following guidelines in the
interpretation and application of Art. 36 of the Family Code are hereby handed down for the
guidance of the bench and the bar:

(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, 11 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 12 echoes this constitutional edict on marriage and the family and emphasizes
the 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 physically 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, 13 nevertheless
such root cause must be identified as a psychological illness and its incapacitating nature explained.
Expert evidence may be given qualified psychiatrist 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. Hence, a pediatrician may be effective in
diagnosing illnesses of children and prescribing medicine to cure them but may not be
psychologically capacitated to procreate, bear and raise his/her own children as an essential
obligation of marriage.

(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, nor 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. It is
clear that Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the
New Code of Canon Law, which became effective in 1983 and which provides:

The following are incapable of contracting marriage: Those who are unable to
assume the essential obligations of marriage due to causes of psychological nature. 14

Since the purpose of including such provision in our Family Code is to harmonize our civil laws
with the religious faith of our people, it stands to reason that to achieve such harmonization, great
persuasive weight should be given to decision of such appellate tribunal. Ideally subject to our
law on evidence what is decreed as canonically invalid should also be decreed civilly void.

This is one instance where, in view of the evident source and purpose of the Family Code provision,
contemporaneous religious interpretation is to be given persuasive effect. Here, the State and the
Church while remaining independent, separate and apart from each other shall walk together
in synodal cadence towards the same goal of protecting and cherishing marriage and the family as
the inviolable base of the nation.

(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 he handed down unless the Solicitor General issues a
certification, which will be quoted in the decision, briefly staring 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.

In the instant case and applying Leouel Santos, we have already ruled to grant the petition. Such
ruling becomes even more cogent with the use of the foregoing guidelines.

WHEREFORE, the petition is GRANTED. The assailed Decision is REVERSED and SET ASIDE.
The marriage of Roridel Olaviano to Reynaldo Molina subsists and remains valid.

SO ORDERED.

Narvasa, C.J., Davide, Jr., Bellosillo, Melo, Puno Francisco, Hermosisima, Jr., and Torres, Jr., JJ.,
concur.

Regalado, Kapunan and Mendoza, JJ., concurs in the result.

 Separate Opinions

PADILLA, J., concuring opinion:

I concur in the result of the decision penned by Mr. Justice Panganiban but only because of the
peculiar facts of the case. As to whether or not the psychological incapacity exists in a given case
calling for annulment of a marriage, depends crucially, more than in any field of the law, on the
facts of the case. InLeouel Santos v. Court of Appeals and Julia Rosario-Bedia Santos, G.R. No.
112019, 4 January 1995, 240 SCRA 20-36, I maintained, and I still maintain, that there was
psychological incapacity on the part of the wife to discharge the duties of a wife in a valid marriage.
The facts of the present case, after an indepth study, do not support a similar conclusion.
Obviously, each case must be judged, not on the basis of a priori assumptions, predilections or
generalizations but according to its own facts. In the field of psychological incapacity as a ground
for annulment of marriage, it is trite to say that no case is on "all fours" with another case. The
trial judge must take pains in examining the actual millieu and the appellate court must, as much as
possible, avoid substituting its own judgment for that of the trial court.

ROMERO, J., separate opinion:

The majority opinion, overturning that of the Court of Appeals which affirmed the Regional Trial
Court ruling. upheld petitioner Solicitor General's position that "opposing and conflicting
personalities" is not equivalent to psychological incapacity, for the latter "is not simply
the neglect by the parties to the marriage of their responsibilities and duties, but a defect in their
Psychological nature which renders them incapable of performing such marital responsibilities and
duties.

In the present case, the alleged personality traits of Reynaldo, the husband, did not constitute so
much "psychological incapacity" as a "difficulty," if not outright "refusal" or "neglect" in the
performance of some marital obligations. "It is not enough to prove that the parties failed to meet
their responsibilities and duties as married persons; it is essential that they must be shown to
be incapable of doing so, due to some psychological (not physical) illness."

I would add that neither should the incapacity be the result of mental illness. For if it were due to
insanity or defects in the mental faculties short of insanity, there is a resultant defect of vice of
consent, thus rendering the marriage annulable under Art. 45 of the Family Code.

That the intent of the members of the U.P. Law Center's Civil Code Revision Committee was to
excludemental inability to understand the essential nature of marriage and focus strictly on
psychological incapacity is demonstrated in the way the provision in question underwent revisions.

At the Committee meeting of July 26, 1986, the draft provision read:

(7) Those marriages contracted by any party who, at the time of the celebration, was
wanting in the sufficient use of reason or judgment to understand the essential
nature of marriage or was psychologically or mentally incapacitated to discharge
 the essential marital obligations, even if such lack of incapacity is made manifest
after the celebration.

The twists and turns which the ensuing discussion took finally produced the following revised
provision even before the session was over:

(7) That contracted by any party who, at the time of the celebration, was
psychologically incapacitated to discharge the essential marital obligations, even if
such lack or incapacity becomes manifest after the celebration.

Noticeably, the immediately preceding formulation above has dropped any reference to "wanting in
the sufficient use of reason or judgment to understand the essential nature or marriage" and to
"mentally incapacitated." It was explained that these phrases refer to "defects in the mental
faculties vitiating consent, which is not the idea . . . but lack of appreciation of one's marital
obligation." There being a defect in consent, "it is clear that it should be a ground for voidable
marriage because there is the appearance of consent and it is capable of convalidation for the
simple reason that there are lucid intervals and there are sanity is curable. . . . Psychological
incapacity does not refer to mental faculties and has nothing to do with consent; it refers to
obligations attendant to
marriage." 1

My own position as a member of the Committee then was that psychological incapacity is, in a
sense, insanity of a lesser degree.

As to the proposal of Justice Caguioa to use the term "psychological or mental impotence,"
Archbishop Oscar Cruz opined in he earlier February 9, 1984 session that this term "is an
invention of some churchmen who are moralists but not canonists, that is why it is considered a
weak phrase." He said that the Code of Canon Law would rather express it as "psychological or
mental incapacity to discharge. . . ." Justice Ricardo C. Puno opined that sometimes a person may
be psychologically impotent with one but not with another.

One of the guidelines enumerated in the majority opinion for the interpretation and application of
Art. 36 is: "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."

The Committee, through Prof. Araceli T. Barrera, considered the inclusion of the phrase" and is
incurable" but Prof. Esteban B. Bautista commented that this would give rise to the question of
how they will determine curability and Justice Caguioa agreed that it would be more problematic.
Yet the possibility that one may be cured after the psychological incapacity becomes manifest after
the marriage was not ruled out by Justice Puno and Justice Alice Sempio-Diy. Justice Caguioa
suggested that the remedy was to allow the afflicted spouse to remarry.

For clarity, the Committee classified the bases for determining void marriages, viz:

1. lack of one or more of the essential requisites of marriage as

contract;

2. reasons of public policy;

 3. special cases and special situations.

The ground of psychological incapacity was subsumed under "special cases and special
situations," hence its special treatment in Art. 36 in the Family Code as finally enacted.

Nowhere in the Civil Code provisions on Marriage is there a ground for avoiding or annulling
marriages that even comes close to being psychological in nature.

Where consent is vitiated due to circumstances existing at the time of the marriage, such marriage
which stands valid until annulled is capable of ratification or convalidation.

On the other hand, for reasons of public policy or lack of essential requisites, some marriages are
void from the beginning.

With the revision of Book I of the Civil Code, particularly the provisions on Marriage, the drafters,
now open to fresh winds of change in keeping with the more permissive mores and practices of the
time, took a leaf from the relatively liberal provisions of Canon Law.

Canon 1095 which states, inter alia, that the following persons are incapable of contracting
marriage: "3. (those) who, because of causes of a psychological nature, are unable to assume the
essential obligations of marriage" provided the model for what is now Art. 36 of the Family Code:
"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.

It bears stressing that unlike in Civil Law, Canon Law recognizes only two types of marriages with
respect to their validity: valid and void. Civil Law, however, recognizes an intermediate state, the
voidable or annullable marriages. When the Ecclesiastical Tribunal "annuls" a marriage, it
actually declares the marriage null and void, i.e., it never really existed in the first place, for a valid
sacramental marriage can never be dissolved. Hence, a properly performed and consummated
marriage between two living Roman Catholics can only be nullified by the formal annulment
process which entails a full tribunal procedure with a Court selection and a formal hearing.

Such so-called church "annulments" are not recognized by Civil Law as severing the marriage ties
as to capacitate the parties to enter lawfully into another marriage. The grounds for nullifying civil
marriage, not being congruent with those laid down by Canon Law, the former being more strict,
quite a number of married couples have found themselves in limbo freed from the marriage
bonds in the eyes of the Catholic Church but yet unable to contract a valid civil marriage under
state laws. Heedless of civil law sanctions, some persons contract new marriages or enter into live-in
relationships.

It was precisely to provide a satisfactory solution to such anomalous situations that the Civil Law
Revision Committee decided to engraft the Canon Law concept of psychological incapacity into the
Family Code and classified the same as a ground for declaring marriages void ab initio or totally
in existent from the beginning.

A brief historical note on the Old Canon Law (1917). This Old Code, while it did not provide
directly for psychological incapacity, in effect recognized the same indirectly from a combination of
three old canons: "Canon #1081 required persons to 'be capable according to law' in order to give
valid consent; Canon #1082 required that persons 'be at least not ignorant' of the major elements
required in marriage; and Canon #1087 (the force and fear category) required that internal and
external freedom be present in order for consent to be valid. This line of interpretation produced
two distinct but related grounds for annulment, called 'lack of due discretion' and 'lack of due
competence.' Lack of due discretion means that the person did not have the ability to give valid
consent at the time of the wedding and therefore the union is invalid. Lack of due competence means
that the person was incapable of carrying out the obligations of the promise he or she made during the
wedding ceremony.

"Favorable annulment decisions by the Roman Rota in the 1950s and 1960s involving sexual
disorders such as homosexuality and nymphomania laid the foundation for a broader approach to the
kind of proof necessary for psychological grounds for annulment. The Rota had reasoned for the first
time in several cases that the capacity to give valid consent at the time of marriage was probably
not present in persons who had displayed such problems shortly after the marriage. The nature of
this change was nothing short of revolutionary. Once the Rota itself had demonstrated a cautious
willingness to use this kind of hindsight, the way was paved for what came after 1970. Diocesan
Tribunals began to accept proof of serious psychological problems that manifested themselves shortly
after the ceremony as proof of an inability to give valid consent at the time of the ceremony.

Furthermore, and equally significant, the professional opinion of a psychological expert became
increasingly important in such cases. Data about the person's entire life, both before and after the
ceremony, were presented to these experts and they were asked to give professional opinions about a
party's mental at the time of the wedding. These opinions were rarely challenged and tended to be
accepted as decisive evidence of lack of valid consent.

The Church took pains to point out that its new openness in this area did not amount to the
addition of new grounds for annulment, but rather was an accommodation by the Church to
the advances made in psychology during the past decades. There was now the expertise to provide the
all-important connecting link between a marriage breakdown and premarital causes.

During the 1970s, the Church broadened its whole idea of marriage from that of a legal contract to
that of a covenant. The result of this was that it could no longer be assumed in annulment cases that
a person who could intellectually understand the concept of marriage could necessarily give valid
consent to marry. The ability to both grasp and assume the real obligations of a mature, lifelong
commitment are now considered a necessary prerequisite to valid matrimonial consent. 2

Rotal decisions continued applying the concept of incipient psychological incapacity, "not only to
sexual anomalies but to all kinds of personality disorders that incapacitate a spouse or both spouses
from assuming or carrying out the essential obligations of marriage. For marriage . . . is not merely
cohabitation or the right of the spouses to each others' body for heterosexual acts, but is, in its
totality, the right to the community of the whole of life, i.e., the right to a developing. lifelong
relationship. Rotal decisions since 1973 have refined the meaning of psychological or psychic capacity
for marriage as presupposing the development of an adult personality; as meaning the capacity of
the spouses to give themselves to each other and to accept the other as a distinct person; that the
spouses must be 'other oriented' since the obligations of marriage are rooted in a self-giving love; and
that the spouses must have the capacity for interpersonal relationship because marriage is more than
just a physical reality but involves a true intertwining of personalities. The fulfillment of the
obligations of marriage depends. according to Church decisions, on the strength of this interpersonal
relationship. A serious incapacity for interpersonal sharing and support is held to impair the
relationship and consequently, the ability to fulfill the essential marital obligations. The marital
capacity of one spouse is not considered in isolation but in reference to the fundamental relationship to
the other spouse. 3

Fr. Green, in an article in Catholic Mind, lists six elements necessary to the mature marital
relationship:

The courts consider the following elements crucial to the marital commitment: (1) a
permanent and faithful commitment to the marriage partner; (2) openness to
children and partner; (3) stability; (4) emotional maturity; (5) financial
responsibility; (6) an ability to cope with the ordinary stresses and strains of
marriage, etc.

Fr. Green goes on to speak about some of the psychological conditions that might
lead to the failure of a marriage:

At stake is a type of constitutional impairment precluding conjugal communion

even with the best intentions of the parties. Among the psychic factors possibly
giving rise to his or her inability to fulfill marital obligations are the following: (1)
antisocial personality with its fundamental lack of loyalty to persons or sense of
moral values; (2) hyperesthesia, where the individual has no real freedom of sexual
choice; (3) the inadequate personality where personal responses consistently
fallshort of reasonable expectations.

xxx xxx xxx

The psychological grounds are the best approach for anyone who doubts whether he
or she has a case for an annulment on any other terms. A situation that does not fit
into any of the more traditional categories often fits very easily into the
psychological category.

As new as the psychological grounds are, experts are already detecting a shift in
their use. Whereas originally the emphasis was on the parties' inability to exercise
proper judgment at the time of the marriage (lack of due discretion), recent cases
seem to be concentrating on the parties' to assume or carry out their responsibilities
an obligations as promised (lack of due competence). An advantage to using the
ground of lack of due competence is that the at the time the marriage was entered
into civil divorce and breakup of the family almost is of someone's failure out marital
responsibilities as promised at the time the marriage was entered into. 4

In the instant case, "opposing and conflicting personalities" of the spouses were not considered
equivalent to psychological incapacity. As well in Santos v. Court of Appeals cited in the ponencia,
the Court held that the failure of the wife to return home from the U.S. or to communicate with her
husband for more then five years is not proof of her psychological incapacity as to render the
marriage a nullity. 5Therefore, Art. 36 is inapplicable and the marriages remain valid and
subsisting.

However in the recent case of Chi Ming Tsoi v. Court of Appeals, 6 this Court upheld both the
Regional Trial Court and the Court of Appeals in declaring the presence of psychological
incapacity on the part of the husband. Said petitioner husband, after ten (10) months' sleeping with
his wife never had coitus with her, a fact he did not deny but he alleged that it was due to the
physical disorder of his wife which, however, he failed to prove. Goaded by the indifference and
stubborn refusal of her husband to fulfill a basic marital obligation described as "to procreate
children based on the universal principle that procreation of children through sexual cooperation is
the basic end of marriage," the wife brought the action in the lower court to declare the marriage
null.

The Court, quoting Dr. Gerardo Veloso, a former Presiding Judge of the Metropolitan Marriage
Tribunal of the Catholic Archdiocese of Manila (Branch I) on Psychological incapacity concluded:

If a spouse, although physically capable but simply refuses to perform his or her
essential marriage obligations, and the refusal is senseless and constant, Catholic
marriage tribunals attribute the causes to psychological incapacity than to stubborn
refusal. Senseless and protracted refusal is equivalent to psychological incapacity.
Thus, the prolonged refusal of a spouse to have sexual intercourse with his or her
spouse is considered a sign of psychological incapacity.

We declared:

This Court, finding the gravity of the failed relationship in which the parties found themselves
trapped in its mire of unfulfilled vows and unconsummated marital obligations, can do no less but
sustain the studied judgment of respondent appellate court.

1 concur with the majority opinion that the herein marriage remains valid and subsisting absent
psychological incapacity (under Art. 36 of the Family Code) on the part of either or both of the
spouses.

VITUG, J., concurring:

I fully concur with my esteemed 'colleague Mr. Justice Artemio V. Panganiban in his ponencia, and
I find to be most helpful the guidelines that he prepared for the bench and the bar in the proper
appreciation of Article 36 of Executive Order No. 209 ("The Family Code of the Philippines"). The
term "psychological incapacity" was neither defined nor exemplified by the Family Code. Thus

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.

The Revision Committee, constituted under the auspices of the U.P. Law Center, which
drafted the Code explained:

(T)he Committee would like the judge to interpret the provision on a case-to-case
basis, guided by experience, the findings of experts and researchers in psychological
disciplines, and by decisions of church tribunals which, although not binding on the
civil courts, may be given persuasive effect since the provision was taken from
Canon Law. 1
Article 36 of the Family Code was concededly taken from Canon 1095 of the New Code of Canon
Law

Canon 1095. (The following persons) are incapable of contracting marriage; (those)

1. who lack sufficient use of reason;

2. who suffer from a grave defect of discretion of judgment concerning essential

matrimonial rights and duties, to be given and accepted mutually;

3. who for causes of psychological nature are unable to assume the essential
obligations of marriage

that should give that much value to Canon Law jurisprudence as an aid to the
interpretation and construction of the statutory enactment. 2

The principles in the proper application of the law teach us that the several provisions of a Code
must be read like a congruent whole. Thus, in determining the import of "psychological incapacity"
under Article 36, one must also read it along with, albeit to be taken as distinct from, the other
grounds enumerated in the Code, like Articles 35, 37, 38 and 41 that would likewise, but for distinct
reasons, render the marriage merely voidable, or Article 55 that could justify a petition for legal
separation. Care must be observed so that these various circumstances are not applied so
indiscriminately as if the law were indifferent on the matter.

I would wish to reiterate the Court's' statement in Santos vs. Court of Appeals; 3 viz:

(T)he use of the phrase "psychological incapacity" under Article 36 of the Code has
not been meant to comprehend all such possible cases of psychoses as, likewise
mentioned by some ecclesiastical authorities, extremely low intelligence, immaturity,
and like circumstances. . . Article 36 of the Family Code cannot be taken and
construed independently of, but must stand in conjunction with, existing precepts in
our law on marriage. Thus correlated, "psychological incapacity" should refer to no
less than a mental (not physical) incapacity that causes a party to be truly
incognitive 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 of the spouse to have sexual relations with the other. This
conclusion is implicit under Article 54 of the Family Code which considers children
conceived prior to the judicial declaration of nullity of the void marriage to be
"legitimate."

The other forms of psychoses, if existing at the inception of marriage, like the state
of a party being of unsound mind or concealment of drug addiction, habitual
alcoholism, homosexuality or lesbianism, merely renders the marriage contract
voidable pursuant to Article 46, Family Code. If drug addiction, habitual
alcoholism, lesbianism or homosexuality should occur only during the marriage,
 they become mere grounds for legal separation under Article 55 of the Family Code.
These provisions of the Code, however, do not necessarily preclude the possibility of
these various circumstances being themselves, depending on the degree and severity
of the disorder, indicia of psychological
incapacity. 4

In fine, the term "psychological incapacity," to be a ground for then nullity of marriage under
Article 36 of the Family Code, must be able to pass the following tests; viz:

First, the incapacity must be psychological or mental, not physical, in nature;

Second, the psychological incapacity must relate to the inability, not mere refusal, to understand,
assume end discharge the basic marital obligations of living together, observing love, respect and
fidelity and rendering mutual help and support;

Third, the psychologic condition must exist at the time the marriage is contracted although its overt
manifestations and the marriage may occur only thereafter; and

Fourth, the mental disorder must be grave or serious and incurable.

It may well be that the Family Code Revision Committee has envisioned Article 36, as not a few
observers would suspect, as another form of absolute divorce or, as still others would also put it, to
be a alternative to divorce; however, the fact still remains that the language of the law has failed to
carry out, even if true, any such intendment. It might have indeed turned out for the better, if it
were otherwise, there could be good reasons to doubt the constitutionality of the measure. The
fundamental law itself, no less, has laid down in terse language its unequivocal command on how
the State should regard marriage and the family, thus

Section 2, Article XV:

Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family

and shall be protected by the State.

Section 12, Article II:

Sec. 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution . . . .

Section 1, Article XV:

Sec. 1. The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development. (The 1987 Constitution)

The case of Marcelino vs. Cruz, 121 SCRA 51, might here be significant not so much for the specific
issue there resolved but for the tone it has set. The Court there has held that constitutional
provisions are to be considered mandatory unless by necessary implication, a different intention is
manifest such that to have them enforced strictly would cause more harm than by disregarding
them. It is quite clear to me that the constitutional mandate on marriage and the family has not
been meant to be simply directory in character, nor for mere expediency or convenience, but one
that demands a meaningful, not half-hearted, respect.

Separate Opinions

PADILLA, J., concuring opinion:

I concur in the result of the decision penned by Mr. Justice Panganiban but only because of the
peculiar facts of the case. As to whether or not the psychological incapacity exists in a given case
calling for annulment of a marriage, depends crucially, more than in any field of the law, on the
facts of the case. InLeouel Santos v. Court of Appeals and Julia Rosario-Bedia Santos, G.R. No.
112019, 4 January 1995, 240 SCRA 20-36, I maintained, and I still maintain, that there was
psychological incapacity on the part of the wife to discharge the duties of a wife in a valid marriage.
The facts of the present case, after an indepth study, do not support a similar conclusion.
Obviously, each case must be judged, not on the basis of a priori assumptions, predilections or
generalizations but according to its own facts. In the field of psychological incapacity as a ground
for annulment of marriage, it is trite to say that no case is on "all fours" with another case. The
trial judge must take pains in examining the actual millieu and the appellate court must, as much as
possible, avoid substituting its own judgment for that of the trial court.

ROMERO, J., separate opinion:

The majority opinion, overturning that of the Court of Appeals which affirmed the Regional Trial
Court ruling. upheld petitioner Solicitor General's position that "opposing and conflicting
personalities" is not equivalent to psychological incapacity, for the latter "is not simply
the neglect by the parties to the marriage of their responsibilities and duties, but a defect in their
Psychological nature which renders them incapable of performing such marital responsibilities and
duties.

In the present case, the alleged personality traits of Reynaldo, the husband, did not constitute so
much "psychological incapacity" as a "difficulty," if not outright "refusal" or "neglect" in the
performance of some marital obligations. "It is not enough to prove that the parties failed to meet
their responsibilities and duties as married persons; it is essential that they must be shown to
be incapable of doing so, due to some psychological (not physical) illness."

I would add that neither should the incapacity be the result of mental illness. For if it were due to
insanity or defects in the mental faculties short of insanity, there is a resultant defect of vice of
consent, thus rendering the marriage annulable under Art. 45 of the Family Code.

That the intent of the members of the U.P. Law Center's Civil Code Revision Committee was to
excludemental inability to understand the essential nature of marriage and focus strictly on
psychological incapacity is demonstrated in the way the provision in question underwent revisions.

At the Committee meeting of July 26, 1986, the draft provision read:

(7) Those marriages contracted by any party who, at the time of the celebration, was
wanting in the sufficient use of reason or judgment to understand the essential
nature of marriage or was psychologically or mentally incapacitated to discharge
 the essential marital obligations, even if such lack of incapacity is made manifest
after the celebration.

The twists and turns which the ensuing discussion took finally produced the following revised
provision even before the session was over:

(7) That contracted by any party who, at the time of the celebration, was
psychologically incapacitated to discharge the essential marital obligations, even if
such lack or incapacity becomes manifest after the celebration.

Noticeably, the immediately preceding formulation above has dropped any reference to "wanting in
the sufficient use of reason or judgment to understand the essential nature or marriage" and to
"mentally incapacitated." It was explained that these phrases refer to "defects in the mental
faculties vitiating consent, which is not the idea . . . but lack of appreciation of one's marital
obligation." There being a defect in consent, "it is clear that it should be a ground for voidable
marriage because there is the appearance of consent and it is capable of convalidation for the
simple reason that there are lucid intervals and there are sanity is curable. . . . Psychological
incapacity does not refer to mental faculties and has nothing to do with consent; it refers to
obligations attendant to
marriage." 1

My own position as a member of the Committee then was that psychological incapacity is, in a
sense, insanity of a lesser degree.

As to the proposal of Justice Caguioa to use the term "psychological or mental impotence,"
Archbishop Oscar Cruz opined in he earlier February 9, 1984 session that this term "is an
invention of some churchmen who are moralists but not canonists, that is why it is considered a
weak phrase." He said that the Code of Canon Law would rather express it as "psychological or
mental incapacity to discharge. . . ." Justice Ricardo C. Puno opined that sometimes a person may
be psychologically impotent with one but not with another.

One of the guidelines enumerated in the majority opinion for the interpretation and application of
Art. 36 is: "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."

The Committee, through Prof. Araceli T. Barrera, considered the inclusion of the phrase" and is
incurable" but Prof. Esteban B. Bautista commented that this would give rise to the question of
how they will determine curability and Justice Caguioa agreed that it would be more problematic.
Yet the possibility that one may be cured after the psychological incapacity becomes manifest after
the marriage was not ruled out by Justice Puno and Justice Alice Sempio-Diy. Justice Caguioa
suggested that the remedy was to allow the afflicted spouse to remarry.

For clarity, the Committee classified the bases for determining void marriages, viz:

1. lack of one or more of the essential requisites of marriage as

contract;

2. reasons of public policy;

 3. special cases and special situations.

The ground of psychological incapacity was subsumed under "special cases and special
situations," hence its special treatment in Art. 36 in the Family Code as finally enacted.

Nowhere in the Civil Code provisions on Marriage is there a ground for avoiding or annulling
marriages that even comes close to being psychological in nature.

Where consent is vitiated due to circumstances existing at the time of the marriage, such marriage
which stands valid until annulled is capable of ratification or convalidation.

On the other hand, for reasons of public policy or lack of essential requisites, some marriages are
void from the beginning.

With the revision of Book I of the Civil Code, particularly the provisions on Marriage, the drafters,
now open to fresh winds of change in keeping with the more permissive mores and practices of the
time, took a leaf from the relatively liberal provisions of Canon Law.

Canon 1095 which states, inter alia, that the following persons are incapable of contracting
marriage: "3. (those) who, because of causes of a psychological nature, are unable to assume the
essential obligations of marriage" provided the model for what is now Art. 36 of the Family Code:
"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.

It bears stressing that unlike in Civil Law, Canon Law recognizes only two types of marriages with
respect to their validity: valid and void. Civil Law, however, recognizes an intermediate state, the
voidable or annullable marriages. When the Ecclesiastical Tribunal "annuls" a marriage, it
actually declares the marriage null and void, i.e., it never really existed in the first place, for a valid
sacramental marriage can never be dissolved. Hence, a properly performed and consummated
marriage between two living Roman Catholics can only be nullified by the formal annulment
process which entails a full tribunal procedure with a Court selection and a formal hearing.

Such so-called church "annulments" are not recognized by Civil Law as severing the marriage ties
as to capacitate the parties to enter lawfully into another marriage. The grounds for nullifying civil
marriage, not being congruent with those laid down by Canon Law, the former being more strict,
quite a number of married couples have found themselves in limbo freed from the marriage
bonds in the eyes of the Catholic Church but yet unable to contract a valid civil marriage under
state laws. Heedless of civil law sanctions, some persons contract new marriages or enter into live-in
relationships.

It was precisely to provide a satisfactory solution to such anomalous situations that the Civil Law
Revision Committee decided to engraft the Canon Law concept of psychological incapacity into the
Family Code and classified the same as a ground for declaring marriages void ab initio or totally
in existent from the beginning.

A brief historical note on the Old Canon Law (1917). This Old Code, while it did not provide
directly for psychological incapacity, in effect recognized the same indirectly from a combination of
three old canons: "Canon #1081 required persons to 'be capable according to law' in order to give
valid consent; Canon #1082 required that persons 'be at least not ignorant' of the major elements
required in marriage; and Canon #1087 (the force and fear category) required that internal and
external freedom be present in order for consent to be valid. This line of interpretation produced
two distinct but related grounds for annulment, called 'lack of due discretion' and 'lack of due
competence.' Lack of due discretion means that the person did not have the ability to give valid
consent at the time of the wedding and therefore the union is invalid. Lack of due competence means
that the person was incapable of carrying out the obligations of the promise he or she made during the
wedding ceremony.

"Favorable annulment decisions by the Roman Rota in the 1950s and 1960s involving sexual
disorders such as homosexuality and nymphomania laid the foundation for a broader approach to the
kind of proof necessary for psychological grounds for annulment. The Rota had reasoned for the first
time in several cases that the capacity to give valid consent at the time of marriage was probably
not present in persons who had displayed such problems shortly after the marriage. The nature of
this change was nothing short of revolutionary. Once the Rota itself had demonstrated a cautious
willingness to use this kind of hindsight, the way was paved for what came after 1970. Diocesan
Tribunals began to accept proof of serious psychological problems that manifested themselves shortly
after the ceremony as proof of an inability to give valid consent at the time of the ceremony.

Furthermore, and equally significant, the professional opinion of a psychological expert became
increasingly important in such cases. Data about the person's entire life, both before and after the
ceremony, were presented to these experts and they were asked to give professional opinions about a
party's mental at the time of the wedding. These opinions were rarely challenged and tended to be
accepted as decisive evidence of lack of valid consent.

The Church took pains to point out that its new openness in this area did not amount to the
addition of new grounds for annulment, but rather was an accommodation by the Church to
the advances made in psychology during the past decades. There was now the expertise to provide the
all-important connecting link between a marriage breakdown and premarital causes.

During the 1970s, the Church broadened its whole idea of marriage from that of a legal contract to
that of a covenant. The result of this was that it could no longer be assumed in annulment cases that
a person who could intellectually understand the concept of marriage could necessarily give valid
consent to marry. The ability to both grasp and assume the real obligations of a mature, lifelong
commitment are now considered a necessary prerequisite to valid matrimonial consent. 2

Rotal decisions continued applying the concept of incipient psychological incapacity, "not only to
sexual anomalies but to all kinds of personality disorders that incapacitate a spouse or both spouses
from assuming or carrying out the essential obligations of marriage. For marriage . . . is not merely
cohabitation or the right of the spouses to each others' body for heterosexual acts, but is, in its
totality, the right to the community of the whole of life, i.e., the right to a developing. lifelong
relationship. Rotal decisions since 1973 have refined the meaning of psychological or psychic capacity
for marriage as presupposing the development of an adult personality; as meaning the capacity of
the spouses to give themselves to each other and to accept the other as a distinct person; that the
spouses must be 'other oriented' since the obligations of marriage are rooted in a self-giving love; and
that the spouses must have the capacity for interpersonal relationship because marriage is more than
just a physical reality but involves a true intertwining of personalities. The fulfillment of the
obligations of marriage depends. according to Church decisions, on the strength of this interpersonal
relationship. A serious incapacity for interpersonal sharing and support is held to impair the
relationship and consequently, the ability to fulfill the essential marital obligations. The marital
capacity of one spouse is not considered in isolation but in reference to the fundamental relationship to
the other spouse. 3

Fr. Green, in an article in Catholic Mind, lists six elements necessary to the mature marital
relationship:

The courts consider the following elements crucial to the marital commitment: (1) a
permanent and faithful commitment to the marriage partner; (2) openness to
children and partner; (3) stability; (4) emotional maturity; (5) financial
responsibility; (6) an ability to cope with the ordinary stresses and strains of
marriage, etc.

Fr. Green goes on to speak about some of the psychological conditions that might
lead to the failure of a marriage:

At stake is a type of constitutional impairment precluding conjugal communion

even with the best intentions of the parties. Among the psychic factors possibly
giving rise to his or her inability to fulfill marital obligations are the following: (1)
antisocial personality with its fundamental lack of loyalty to persons or sense of
moral values; (2) hyperesthesia, where the individual has no real freedom of sexual
choice; (3) the inadequate personality where personal responses consistently
fallshort of reasonable expectations.

xxx xxx xxx

The psychological grounds are the best approach for anyone who doubts whether he
or she has a case for an annulment on any other terms. A situation that does not fit
into any of the more traditional categories often fits very easily into the
psychological category.

As new as the psychological grounds are, experts are already detecting a shift in
their use. Whereas originally the emphasis was on the parties' inability to exercise
proper judgment at the time of the marriage (lack of due discretion), recent cases
seem to be concentrating on the parties' to assume or carry out their responsibilities
an obligations as promised (lack of due competence). An advantage to using the
ground of lack of due competence is that the at the time the marriage was entered
into civil divorce and breakup of the family almost is of someone's failure out marital
responsibilities as promised at the time the marriage was entered into. 4

In the instant case, "opposing and conflicting personalities" of the spouses were not considered
equivalent to psychological incapacity. As well in Santos v. Court of Appeals cited in the ponencia,
the Court held that the failure of the wife to return home from the U.S. or to communicate with her
husband for more then five years is not proof of her psychological incapacity as to render the
marriage a nullity. 5Therefore, Art. 36 is inapplicable and the marriages remain valid and
subsisting.

However in the recent case of Chi Ming Tsoi v. Court of Appeals, 6 this Court upheld both the
Regional Trial Court and the Court of Appeals in declaring the presence of psychological
incapacity on the part of the husband. Said petitioner husband, after ten (10) months' sleeping with
his wife never had coitus with her, a fact he did not deny but he alleged that it was due to the
physical disorder of his wife which, however, he failed to prove. Goaded by the indifference and
stubborn refusal of her husband to fulfill a basic marital obligation described as "to procreate
children based on the universal principle that procreation of children through sexual cooperation is
the basic end of marriage," the wife brought the action in the lower court to declare the marriage
null.

The Court, quoting Dr. Gerardo Veloso, a former Presiding Judge of the Metropolitan Marriage
Tribunal of the Catholic Archdiocese of Manila (Branch I) on Psychological incapacity concluded:

If a spouse, although physically capable but simply refuses to perform his or her
essential marriage obligations, and the refusal is senseless and constant, Catholic
marriage tribunals attribute the causes to psychological incapacity than to stubborn
refusal. Senseless and protracted refusal is equivalent to psychological incapacity.
Thus, the prolonged refusal of a spouse to have sexual intercourse with his or her
spouse is considered a sign of psychological incapacity.

We declared:

This Court, finding the gravity of the failed relationship in which the parties found themselves
trapped in its mire of unfulfilled vows and unconsummated marital obligations, can do no less but
sustain the studied judgment of respondent appellate court.

1 concur with the majority opinion that the herein marriage remains valid and subsisting absent
psychological incapacity (under Art. 36 of the Family Code) on the part of either or both of the
spouses.

VITUG, J., concurring:

I fully concur with my esteemed 'colleague Mr. Justice Artemio V. Panganiban in his ponencia, and
I find to be most helpful the guidelines that he prepared for the bench and the bar in the proper
appreciation of Article 36 of Executive Order No. 209 ("The Family Code of the Philippines"). The
term "psychological incapacity" was neither defined nor exemplified by the Family Code. Thus

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.

The Revision Committee, constituted under the auspices of the U.P. Law Center, which
drafted the Code explained:

(T)he Committee would like the judge to interpret the provision on a case-to-case
basis, guided by experience, the findings of experts and researchers in psychological
disciplines, and by decisions of church tribunals which, although not binding on the
civil courts, may be given persuasive effect since the provision was taken from
Canon Law. 1
Article 36 of the Family Code was concededly taken from Canon 1095 of the New Code of Canon
Law

Canon 1095. (The following persons) are incapable of contracting marriage; (those)

1. who lack sufficient use of reason;

2. who suffer from a grave defect of discretion of judgment concerning essential

matrimonial rights and duties, to be given and accepted mutually;

3. who for causes of psychological nature are unable to assume the essential
obligations of marriage

that should give that much value to Canon Law jurisprudence as an aid to the
interpretation and construction of the statutory enactment. 2

The principles in the proper application of the law teach us that the several provisions of a Code
must be read like a congruent whole. Thus, in determining the import of "psychological incapacity"
under Article 36, one must also read it along with, albeit to be taken as distinct from, the other
grounds enumerated in the Code, like Articles 35, 37, 38 and 41 that would likewise, but for distinct
reasons, render the marriage merely voidable, or Article 55 that could justify a petition for legal
separation. Care must be observed so that these various circumstances are not applied so
indiscriminately as if the law were indifferent on the matter.

I would wish to reiterate the Court's' statement in Santos vs. Court of Appeals; 3 viz:

(T)he use of the phrase "psychological incapacity" under Article 36 of the Code has
not been meant to comprehend all such possible cases of psychoses as, likewise
mentioned by some ecclesiastical authorities, extremely low intelligence, immaturity,
and like circumstances. . . Article 36 of the Family Code cannot be taken and
construed independently of, but must stand in conjunction with, existing precepts in
our law on marriage. Thus correlated, "psychological incapacity" should refer to no
less than a mental (not physical) incapacity that causes a party to be truly
incognitive 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 of the spouse to have sexual relations with the other. This
conclusion is implicit under Article 54 of the Family Code which considers children
conceived prior to the judicial declaration of nullity of the void marriage to be
"legitimate."

The other forms of psychoses, if existing at the inception of marriage, like the state
of a party being of unsound mind or concealment of drug addiction, habitual
alcoholism, homosexuality or lesbianism, merely renders the marriage contract
voidable pursuant to Article 46, Family Code. If drug addiction, habitual
alcoholism, lesbianism or homosexuality should occur only during the marriage,
 they become mere grounds for legal separation under Article 55 of the Family Code.
These provisions of the Code, however, do not necessarily preclude the possibility of
these various circumstances being themselves, depending on the degree and severity
of the disorder, indicia of psychological
incapacity. 4

In fine, the term "psychological incapacity," to be a ground for then nullity of marriage under
Article 36 of the Family Code, must be able to pass the following tests; viz:

First, the incapacity must be psychological or mental, not physical, in nature;

Second, the psychological incapacity must relate to the inability, not mere refusal, to understand,
assume end discharge the basic marital obligations of living together, observing love, respect and
fidelity and rendering mutual help and support;

Third, the psychologic condition must exist at the time the marriage is contracted although its overt
manifestations and the marriage may occur only thereafter; and

Fourth, the mental disorder must be grave or serious and incurable.

It may well be that the Family Code Revision Committee has envisioned Article 36, as not a few
observers would suspect, as another form of absolute divorce or, as still others would also put it, to
be a alternative to divorce; however, the fact still remains that the language of the law has failed to
carry out, even if true, any such intendment. It might have indeed turned out for the better, if it
were otherwise, there could be good reasons to doubt the constitutionality of the measure. The
fundamental law itself, no less, has laid down in terse language its unequivocal command on how
the State should regard marriage and the family, thus

Section 2, Article XV:

Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family

and shall be protected by the State.

Section 12, Article II:

Sec. 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution . . . .

Section 1, Article XV:

Sec. 1. The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development. (The 1987 Constitution)

The case of Marcelino vs. Cruz, 121 SCRA 51, might here be significant not so much for the specific
issue there resolved but for the tone it has set. The Court there has held that constitutional
provisions are to be considered mandatory unless by necessary implication, a different intention is
manifest such that to have them enforced strictly would cause more harm than by disregarding
them. It is quite clear to me that the constitutional mandate on marriage and the family has not
been meant to be simply directory in character, nor for mere expediency or convenience, but one
that demands a meaningful, not half-hearted, respect.

Footnotes

1 Rollo pp. 25-33.

2 Sixteenth Division composed of J., Segundino G. Chua, ponente and chairman JJ.,
Serafin V.C. Guingona and Ricardo P. Galvez, concurring.

3 Presided by Judge Heilia S. Mallare-Phillipps.

4 Solemnized by Fr. Jesus C. Encinas.

5 The Court of Appeals reproduced in its Decision a substantial portion of the RTC
Decision is follows:

"To sustain her claim that respondent is psychologically incapacitated to comply

with his marital obligations, petitioner testified that he is immature, irresponsible,
dependent, disrespectful, arrogant, a chronic liar, and an infidel. These
characteristics of respondent are based on petitioner's testimony that the former
failed to be gainfully employed after he was relieved from the office of the
Government Corporate Counsel sometime in February, 1986. leaving petitioner as
the sole breadwinner of the family. Also when they were separated in fact,
respondent practically abandoned both petitioner-mother and son except during the
first few months of separation when respondent regularly visited his son and gave
him a monthly allowance of P1,000.00 for about two to four months. Respondent is
likewise dependent on his parents for financial aid and support as he has no savings,
preferring to spend his money with his friends and peers. A year after their
marriage, respondent informed petitioner that he bought a house and lot at BF
Homes, Paraaque for about a million pesos. They then transferred there only for
the petitioner to discover a few months later that they were actually renting the
house with the respondent's parents responsible for the payment of the rentals.
Aside from this. respondent would also lie about his salary and ability. And that at
present, respondent is living with his mistress and their child. which fact he does not
deny.

It is unfortunate that the marriage between petitioner and respondent turned sour if
we look at the background of their relationship. During their college days, when
they were still going steady, respondent observed petitioner to be conservative,
homely, and intelligent causing him to believe then that she would make an ideal
wife and mother. Likewise, petitioner fell in love with respondent because of his
thoughtfulness and gentleness. After a year, however, they decided to break their
relationship because of some differences in their personalities. Almost five (5) years
later, while they were working in Manila, petitioner and respondent rekindled their
love affair. They became very close and petitioner was glad to observe a more
mature respondent. Believing that they know each other much better after two
years of going steady, they decided to settle down and get married. It would seem.
therefore, that petitioner and respondent knew each other well and were then
prepared for married life.
During their marriage, however, the true personalities of the parties cropped-up
and dominated their life together. Unexpectedly on both their parts, petitioner and
respondent failed to respond properly to the situation. This failure resulted in their
frequent arguments and fighting's. In fact, even with the intervention and help of
their parents who arranged for their possible reconciliation, the parties could not
come to terms.

It seems clear at this stage that the marriage between the parties broke-up because
of their opposing and conflicting personalities (sic). Neither of them can accept and
understand the weakness of the other. No one gives in and instead, blame each other
for whatever problem or misunderstanding/s they encounter. In fine, respondent
cannot be solely responsible for the failure of other (sic) marriage. Rather, this
resulted because both parties cannot relate to each other as husband and wife which
is unique and requisite in marriage.

Marriage is a special contract of permanent union between a man and a woman

with the basic objective of establishing a conjugal and family life. (Article 1, Family
Code). The unique element of permanency of union signifies a continuing,
developing, and lifelong relationship between the parties. Towards this end, the
parties must fully understand and accept the (implications and consequences of
being permanently) united in marriage. And the maintenance of this relationship
demands from the parties, among others, determination to succeed in their
marriage as well as heartfelt understanding, acceptance, cooperation, and support
for each other. Thus, the Family Code requires them to live together, to observe
mutual (love, respect and fidelity, and render mutual help and support. Failure to
observe) and perform these fundamental roles of a husband and a wife will most
likely lead to the break-up of the marriage. Such is the unfortunate situation in this
case. (Decision, pp. 5-8; Original Records, pp. 70-73).

6 240 SCRA 20, 34, January 4, 1995.

7 Quoted from Justice Alicia Sempio-Diy, Handbook on the Family Code, First
Edition, 1988.

8 TSN, April 6, 1991, p. 5.

9 The National Appellate Matrimonial Tribunal reviews all decisions of the

marriage tribunals of each archdiocese in the country. Aside from heading the
Appellate Tribunal, Most. Rev. Cruz is also incumbent president of the Catholic
Bishops' Conference of the Philippines, Archbishop of Dagupan-Lingayen, and
holds the degrees of Doctor of Canon Law and Doctor of Divinity. Archbishop Cruz
was also Secretary-General of the Second Plenary Council of the Philippines PCP
II held from January 20, 1991 to February 17, 1991, which is the rough
equivalent of a parliament or a constitutional convention in the Philippine Church,
and where the ponente, who was a Council member, had the privilege of being
overwhelmed by his keen mind and prayerful discernments.

10 Justice Puno was a former member of the Court of Appeals, retired Minister of
Justice, author, noted civil law professor and the law practitioner.
 Article XV

THE FAMILY

Sec. 1. The State recognizes the Filipino Family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development.

Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family

and shall be protected by the state.

Sec. 3. The State shall defend:

(1) The right of spouses to found a family in accordance with their religious
connections and the demands of responsible parenthood;

(2) The right of children to assistance, including proper care and nutrition, and
special protection from all forms of neglect, abuse, cruelty. exploitation, and other
conditions prejudicial to their development;

(3) The right of the family to a family living wage and income;

(4) The right of families or family associations to participate in the planning and
implementation of policies and programs that affect them.

Sec. 4. The family has the duty to care for its elderly members but the state may also
do so through just programs of social security.

Art. 1 Marriage is a special contract of permanent union between a man and a

woman entered into in accordance with law for the establishment of conjugal and
family life. It is the foundation of the family and an inviolable social institution
whose nature, consequences, and incidents are governed by law and not subject to
stipulation, except that marriage settlements may fix the property relations during
the marriage within the limits provided by this Code.

13 Salita vs. Magtolis, 233 SCRA 100, June 13, 1994.

14 This text is taken from the Memorandum of Archbishop Cruz. On the other
hand, the text used in Santos v. CA reads:

"Canon 1095. They are incapable of contracting marriage:

xxx xxx xxx

3. Who for causes of psychological nature are unable to assume the essential
obligations of marriage.
 The difference in wording between this and that in Arch. Cruz's Memorandum is
due to the fact that the original Canon is written in Latin and both versions are
differently-worded English translations.

ROMERO, J., separate opinion:

1 Justice Caguioa's explanation in the Minutes of July 26, 1986 of the Civil Code
Revision Committee of the U.P. Law Center.

2 Zwack , Joseph P. Annulment, A Step-by-Step Guide.

3 The Code of Canon Law, A Text and Commentary, The Canon Law Society of
America, Paulist Press, New York, 1985.

4 Zwack, ibid., p. 47.

5 G.R. No. 112019, 240 SCRA 20 (1995).

6 G.R. No. 119190 (1997).

VITUG, J., concurring:

1 Mr. Justice Josue N. Bellosillo, quoting Mme. Justice Alicia V. Sempio-Diy, In

Salita vs. Hon. Magtolis, 233 SCRA 100.

2 In Santos vs. Court Appeals, 240 SCRA 20.

3 Supra.

4 At pages 34-35.

Procedural History

This is a petition for review on certiorari under Rule 45 challenging the January 25, 1993
Decision of the Court of Appeals in CA-G.R. CV No. 34858 affirming in the May 14, 1991 decision of
the Regional Trial Court of La Trinidad, Benguet, which declared the marriage of respondent Roridel O.
Molina to Reynaldo Molina void ab initio, on the ground of "psychological incapacity" under Article 36
of the Family Code.
The Facts

This case was commenced on August 16, 1990 with the filing by respondent Roridel O. Molina of
a verified petition for declaration of nullity of her marriage to Reynaldo Molina. Essentially, the petition
alleged that Roridel and Reynaldo were married on April 14, 1985 at the San Agustin Church 4 in Manila;
that a son, Andre O. Molina was born; that after a year of marriage, Reynaldo showed signs of
"immaturity and irresponsibility" as a husband and a father since he preferred to spend more time with his
peers and friends on whom he squandered his money;
During the pre-trial on October 17, 1990, the following were stipulated:
That the parties herein were legally married on April 14, 1985 at the Church of St.Augustine, Manila;
That out of their marriage, a child named Albert Andre Olaviano Molina was born on July 29, 1986;
 That the parties are separated-in-fact for more than three years;
That petitioner is not asking support for her and her child;
That the respondent is not asking for damages;
That the common child of the parties is in the custody of the petitioner wife.
On May 14, 1991, the trial court rendered judgment declaring the marriage void. The appeal of
petitioner was denied by the Court of Appeals which affirmed in toto the RTC's decision. Hence, the
present recourse.
In denying the Solicitor General's appeal, the respondent Court relied 5 heavily on the trial court's
findings "that the marriage between the parties broke up because of their opposing and conflicting
personalities." Then, it added its own opinion that "the Civil Code Revision Committee (hereinafter
referred to as Committee) intended to liberalize the application of our civil laws on personal and family
rights. . . ." It concluded that: As ground for annulment of marriage, We view psychologically incapacity
as a broad range of mental and behavioral conduct on the part of one spouse indicative of how he or she
regards the marital union, his or her personal relationship with the other spouse, as well as his or her
conduct in the long haul for the attainment of the principal objectives of marriage. If said conduct,
observed and considered as a whole, tends to cause the union to self-destruct because it defeats the very
objectives of marriage, then there is enough reason to leave the spouses to their individual fates.
The petitioner, on the other hand, argues that "opposing and conflicting personalities" is not
equivalent to psychological incapacity, explaining that such ground "is not simply the neglect by the
parties to the marriage of their responsibilities and duties, but a defect in their psychological nature which
renders them incapable of performing such marital responsibilities and duties.
The Issue

Whether or not the opposing and conflicting relationship between the couple constitutes a
Psychological Incapacity?
Whether or not the Court of Appeals in affirming the trial courts judgment is within the
standards required by Art. 36 or Psychological Incapacity? And thus CAs affirmation is correct?
The Holding
No, the Supreme Court granted the petition and the marriage is valid, In Leouel Santos vs.
Court of Appeals this Court, speaking thru Mr. Justice Jose C. Vitug, ruled that "psychological
incapacity should refer to no less than a mental (nor physical) incapacity . . . and that (t)here 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 psychologic condition must exist at the time the
marriage is celebrated.
Citing Dr. Gerardo Veloso, a former presiding judge of the Metropolitan Marriage Tribunal of the
Catholic Archdiocese of Manila, 7 Justice Vitug wrote that "the psychological incapacity must be
characterized by (a) gravity, (b) juridical antecedence, and (c) incurability."
In the present case, there is no clear showing to us that the psychological defect spoken of is an
incapacity. It appears to us to be more of a "difficulty," if not outright "refusal" or "neglect" in the
performance of some marital obligations. Mere showing of "irreconciliable differences" and "conflicting
personalities" in no wise constitutes psychological incapacity. It is not enough to prove that the parties
failed to meet their responsibilities and duties as married persons; it is essential that they must be shown
to be incapable of doing so, due to some psychological (nor physical) illness.
The evidence adduced by respondent merely showed that she and her husband couldnor get along
with each other. There had been no showing of the gravity of the problem; neither its juridical
antecedence nor its incurability. The expert testimony of Dr. Sison showed no incurable psychiatric
disorder but only incompatibility, not psychological incapacity.
Court's Reasoning
 The Court decided to invite two amici curiae, namely, the Most Reverend Oscar V. Cruz, 9 Vicar
Judicial (Presiding Judge) of the National Appellate Matrimonial Tribunal of the Catholic Church in the
Philippines, and Justice Ricardo C. Puno, 10 a member of the Family Code Revision Committee. ,the
following guidelines in the interpretation and application of Art. 36 of the Family Code are hereby handed
down for the guidance of the bench and the bar:
(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.
(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.
(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, nor a refusal, neglect or difficulty, much less ill will.
(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.It is clear
that Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the New Code of
Canon Law, which became effective in 1983 and which provides:
The following are incapable of contracting marriage:
Those who are unable to assume the essential obligations of marriage due to causes of psychological
nature.
(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 he handed down unless the Solicitor General issues a
certification, which will be quoted in the decision, briefly staring 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
defensorvinculi contemplated under Canon 1095.

CASE # 9
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-39419 April 12, 1982

MAPALAD AISPORNA, petitioner,

vs.
THE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

DE CASTRO, J.:

In this petition for certiorari, petitioner-accused Aisporna seeks the reversal of the decision dated August
14, 19741 in CA-G.R. No. 13243-CR entitled "People of the Philippines, plaintiff-appellee, vs. Mapalad
Aisporna, defendant-appellant" of respondent Court of Appeals affirming the judgment of the City Court
of Cabanatuan 2 rendered on August 2, 1971 which found the petitioner guilty for having violated Section
189 of the Insurance Act (Act No. 2427, as amended) and sentenced her to pay a fine of P500.00 with
subsidiary imprisonment in case of insolvency, and to pay the costs.

Petitioner Aisporna was charged in the City Court of Cabanatuan for violation of Section 189 of the
Insurance Act on November 21, 1970 in an information 3 which reads as follows:

That on or before the 21st day of June, 1969, in the City of Cabanatuan, Republic of the
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there, wilfully, unlawfully and feloniously act as agent in the
solicitation or procurement of an application for insurance by soliciting therefor the
application of one Eugenio S. Isidro, for and in behalf of Perla Compania de Seguros,
Inc., a duly organized insurance company, registered under the laws of the Republic of
the Philippines, resulting in the issuance of a Broad Personal Accident Policy No. 28PI-
RSA 0001 in the amount not exceeding FIVE THOUSAND PESOS (P5,000.00) dated
June 21, 1969, without said accused having first secured a certificate of authority to act as
such agent from the office of the Insurance Commissioner, Republic of the Philippines.

CONTRARY TO LAW.

The facts, 4 as found by the respondent Court of Appeals are quoted hereunder:

IT RESULTING: That there is no debate that since 7 March, 1969 and as of 21 June,
1969, appellant's husband, Rodolfo S. Aisporna was duly licensed by Insurance
Commission as agent to Perla Compania de Seguros, with license to expire on 30 June,
1970, Exh. C; on that date, at Cabanatuan City, Personal Accident Policy, Exh. D was
issued by Perla thru its author representative, Rodolfo S. Aisporna, for a period of twelve
(12) months with beneficiary as Ana M. Isidro, and for P5,000.00; apparently, insured
died by violence during lifetime of policy, and for reasons not explained in record,
present information was filed by Fiscal, with assistance of private prosecutor, charging
wife of Rodolfo with violation of Sec. 189 of Insurance Law for having, wilfully,
 unlawfully, and feloniously acted, "as agent in the solicitation for insurance by soliciting
therefore the application of one Eugenio S. Isidro for and in behalf of Perla Compaa de
Seguros, ... without said accused having first secured a certificate of authority to act as
such agent from the office of the Insurance Commission, Republic of the Philippines."

and in the trial, People presented evidence that was hardly disputed, that aforementioned
policy was issued with active participation of appellant wife of Rodolfo, against which
appellant in her defense sought to show that being the wife of true agent, Rodolfo, she
naturally helped him in his work, as clerk, and that policy was merely a renewal and was
issued because Isidro had called by telephone to renew, and at that time, her husband,
Rodolfo, was absent and so she left a note on top of her husband's desk to renew ...

Consequently, the trial court found herein petitioner guilty as charged. On appeal, the trial court's decision
was affirmed by the respondent appellate court finding the petitioner guilty of a violation of the first
paragraph of Section 189 of the Insurance Act. Hence, this present recourse was filed on October 22,
1974. 5

In its resolution of October 28, 1974, 6 this Court resolved, without giving due course to this instant
petition, to require the respondent to comment on the aforesaid petition. In the comment 7 filed on
December 20, 1974, the respondent, represented by the Office of the Solicitor General, submitted that
petitioner may not be considered as having violated Section 189 of the Insurance Act. 8 On April 3, 1975,
petitioner submitted his Brief 9 while the Solicitor General, on behalf of the respondent, filed a
manifestation 10 in lieu of a Brief on May 3, 1975 reiterating his stand that the petitioner has not violated
Section 189 of the Insurance Act.

In seeking reversal of the judgment of conviction, petitioner assigns the following errors 11 allegedly
committed by the appellate court:

1. THE RESPONDENT COURT OF APPEALS ERRED IN FINDING THAT RECEIPT

OF COMPENSATION IS NOT AN ESSENTIAL ELEMENT OF THE CRIME
DEFINED BY THE FIRST PARAGRAPH OF SECTION 189 OF THE INSURANCE
ACT.

2. THE RESPONDENT COURT OF APPEALS ERRED IN GIVING DUE WEIGHT

TO EXHIBITS F, F-1, TO F-17, INCLUSIVE SUFFICIENT TO ESTABLISH
PETITIONER'S GUILT BEYOND REASONABLE DOUBT.

3. THE RESPONDENT COURT OF APPEALS ERRED IN NOT ACQUITTING

HEREIN PETITIONER.

We find the petition meritorious.

The main issue raised is whether or not a person can be convicted of having violated the first paragraph of
Section 189 of the Insurance Act without reference to the second paragraph of the same section. In other
words, it is necessary to determine whether or not the agent mentioned in the first paragraph of the
aforesaid section is governed by the definition of an insurance agent found on its second paragraph.

The pertinent provision of Section 189 of the Insurance Act reads as follows:
 No insurance company doing business within the Philippine Islands, nor any agent
thereof, shall pay any commission or other compensation to any person for services in
obtaining new insurance, unless such person shall have first procured from the Insurance
Commissioner a certificate of authority to act as an agent of such company as hereinafter
provided. No person shall act as agent, sub-agent, or broker in the solicitation of
procurement of applications for insurance, or receive for services in obtaining new
insurance, any commission or other compensation from any insurance company doing
business in the Philippine Islands, or agent thereof, without first procuring a certificate of
authority so to act from the Insurance Commissioner, which must be renewed annually on
the first day of January, or within six months thereafter. Such certificate shall be issued
by the Insurance Commissioner only upon the written application of persons desiring
such authority, such application being approved and countersigned by the company such
person desires to represent, and shall be upon a form approved by the Insurance
Commissioner, giving such information as he may require. The Insurance Commissioner
shall have the right to refuse to issue or renew and to revoke any such certificate in his
discretion. No such certificate shall be valid, however, in any event after the first day of
July of the year following the issuing of such certificate. Renewal certificates may be
issued upon the application of the company.

Any person who for compensation solicits or obtains insurance on behalf of any
insurance company, or transmits for a person other than himself an application for a
policy of insurance to or from such company or offers or assumes to act in the negotiating
of such insurance, shall be an insurance agent within the intent of this section, and shall
thereby become liable to all the duties, requirements, liabilities, and penalties to which an
agent of such company is subject.

Any person or company violating the provisions of this section shall be fined in the sum
of five hundred pesos. On the conviction of any person acting as agent, sub-agent, or
broker, of the commission of any offense connected with the business of insurance, the
Insurance Commissioner shall immediately revoke the certificate of authority issued to
him and no such certificate shall thereafter be issued to such convicted person.

A careful perusal of the above-quoted provision shows that the first paragraph thereof prohibits a person
from acting as agent, sub-agent or broker in the solicitation or procurement of applications for insurance
without first procuring a certificate of authority so to act from the Insurance Commissioner, while its
second paragraph defines who is an insurance agent within the intent of this section and, finally, the third
paragraph thereof prescribes the penalty to be imposed for its violation.

The respondent appellate court ruled that the petitioner is prosecuted not under the second paragraph of
Section 189 of the aforesaid Act but under its first paragraph. Thus

... it can no longer be denied that it was appellant's most active endeavors that resulted in
issuance of policy to Isidro, she was there and then acting as agent, and received the pay
thereof her defense that she was only acting as helper of her husband can no longer be
sustained, neither her point that she received no compensation for issuance of the policy
because

any person who for compensation solicits or obtains insurance on behalf

of any insurance company or transmits for a person other than himself an
application for a policy of insurance to or from such company or offers
 or assumes to act in the negotiating of such insurance, shall be an
insurance agent within the intent of this section, and shall thereby
become liable to all the duties, requirements, liabilities, and penalties, to
which an agent of such company is subject. paragraph 2, Sec. 189,
Insurance Law,

now it is true that information does not even allege that she had obtained the insurance,

for compensation

which is the gist of the offense in Section 189 of the Insurance Law in its 2nd paragraph,
but what appellant apparently overlooks is that she is prosecuted not under the 2nd but
under the 1st paragraph of Sec. 189 wherein it is provided that,

No person shall act as agent, sub-agent, or broker, in the solicitation or

procurement of applications for insurance, or receive for services in
obtaining new insurance any commission or other compensation from
any insurance company doing business in the Philippine Island, or agent
thereof, without first procuring a certificate of authority to act from the
insurance commissioner, which must be renewed annually on the first
day of January, or within six months thereafter.

therefore, there was no technical defect in the wording of the charge, so that Errors 2 and
4 must be overruled. 12

From the above-mentioned ruling, the respondent appellate court seems to imply that the definition of an
insurance agent under the second paragraph of Section 189 is not applicable to the insurance agent
mentioned in the first paragraph. Parenthetically, the respondent court concludes that under the second
paragraph of Section 189, a person is an insurance agent if he solicits and obtains an insurance for
compensation, but, in its first paragraph, there is no necessity that a person solicits an insurance for
compensation in order to be called an insurance agent.

We find this to be a reversible error. As correctly pointed out by the Solicitor General, the definition of an
insurance agent as found in the second paragraph of Section 189 is intended to define the word "agent"
mentioned in the first and second paragraphs of the aforesaid section. More significantly, in its second
paragraph, it is explicitly provided that the definition of an insurance agent is within the intent of Section
189. Hence

Any person who for compensation ... shall be an insurance agent within the intent of this
section, ...

Patently, the definition of an insurance agent under the second paragraph holds true with respect to the
agent mentioned in the other two paragraphs of the said section. The second paragraph of Section 189 is a
definition and interpretative clause intended to qualify the term "agent" mentioned in both the first and
third paragraphs of the aforesaid section.

Applying the definition of an insurance agent in the second paragraph to the agent mentioned in the first
and second paragraphs would give harmony to the aforesaid three paragraphs of Section 189. Legislative
intent must be ascertained from a consideration of the statute as a whole. The particular words, clauses
and phrases should not be studied as detached and isolated expressions, but the whole and every part of
 the statute must be considered in fixing the meaning of any of its parts and in order to produce
harmonious whole. 13 A statute must be so construed as to harmonize and give effect to all its provisions
whenever possible. 14 The meaning of the law, it must be borne in mind, is not to be extracted from any
single part, portion or section or from isolated words and phrases, clauses or sentences but from a general
consideration or view of the act as a whole. 15 Every part of the statute must be interpreted with reference
to the context. This means that every part of the statute must be considered together with the other parts,
and kept subservient to the general intent of the whole enactment, not separately and
independently. 16 More importantly, the doctrine of associated words (Noscitur a Sociis) provides that
where a particular word or phrase in a statement is ambiguous in itself or is equally susceptible of various
meanings, its true meaning may be made clear and specific by considering the company in which it is
found or with which it is associated. 17

Considering that the definition of an insurance agent as found in the second paragraph is also applicable
to the agent mentioned in the first paragraph, to receive a compensation by the agent is an essential
element for a violation of the first paragraph of the aforesaid section. The appellate court has established
ultimately that the petitioner-accused did not receive any compensation for the issuance of the insurance
policy of Eugenio Isidro. Nevertheless, the accused was convicted by the appellate court for, according to
the latter, the receipt of compensation for issuing an insurance policy is not an essential element for a
violation of the first paragraph of Section 189 of the Insurance Act.

We rule otherwise. Under the Texas Penal Code 1911, Article 689, making it a misdemeanor for any
person for direct or indirect compensation to solicit insurance without a certificate of authority to act as an
insurance agent, an information, failing to allege that the solicitor was to receive compensation either
directly or indirectly, charges no offense. 18 In the case of Bolen vs. Stake, 19 the provision of Section
3750, Snyder's Compiled Laws of Oklahoma 1909 is intended to penalize persons only who acted as
insurance solicitors without license, and while acting in such capacity negotiated and concluded insurance
contracts for compensation. It must be noted that the information, in the case at bar, does not allege that
the negotiation of an insurance contracts by the accused with Eugenio Isidro was one for compensation.
This allegation is essential, and having been omitted, a conviction of the accused could not be sustained.
It is well-settled in Our jurisprudence that to warrant conviction, every element of the crime must be
alleged and proved. 20

After going over the records of this case, We are fully convinced, as the Solicitor General maintains, that
accused did not violate Section 189 of the Insurance Act.

WHEREFORE, the judgment appealed from is reversed and the accused is acquitted of the crime
charged, with costs de oficio.

SO ORDERED.

FACTS:

Rodolfo S. Aisporna was duly licensed by Insurance Commission as agent to Perla Compania de
Seguros, with license to expire on 30 June, 1970
Eugenio S. Isidro was issued a Personal Accident Policy by Perla thru its author representative,
Rodolfo for a period of 12 months with beneficiary as Ana M. Isidro for P5,000
Personal Accident Policy insured died by violence during lifetime of policy
Fiscal filed against Mapalad Aisporna, wife of Rodolfo with violation of Sec. 189 of Insurance Law for
having, wilfully, unlawfully, and feloniously acted, "as agent in the solicitation for insurance by
soliciting the application of Eugenio S. Isidro for and in behalf of Perla Compaa de Seguros, ...
 without said accused having first secured a certificate of authority to act as such agent from the office
of the Insurance Commission, Republic of the Philippines
Defense: she naturally helped him in his work, as clerk, and that policy was merely a renewal and was
issued because Isidro had called by telephone to renew, and at that time, her husband, Rodolfo, was
absent and so she left a note on top of her husband's desk to renew
RTC and CA: guilty as charged
ISSUE: W/N the agent mentioned in the 1st paragraph of Sec. 189 of the Insurance Act is governed by the
definition of an insurance agent found on its 2nd paragraph

HELD: NO. Reversed

Section 189 of the Insurance Act
Insurance Act
Section 189
No insurance company doing business within the Philippine Islands, nor any agent thereof, shall pay any
commission or other compensation to any person for services in obtaining new insurance, unless such
person shall have first procured from the Insurance Commissioner a certificate of authority to act as an
agent of such company as hereinafter provided. No person shall act as agent, sub-agent, or broker in the
solicitation of procurement of applications for insurance, or receive for services in obtaining new
insurance, any commission or other compensation from any insurance company doing business in the
Philippine Islands, or agent thereof, without first procuring a certificate of authority so to act from the
Insurance Commissioner, which must be renewed annually on the first day of January, or within six
months thereafter. Such certificate shall be issued by the Insurance Commissioner only upon the written
application of persons desiring such authority, such application being approved and countersigned by the
company such person desires to represent, and shall be upon a form approved by the Insurance
Commissioner, giving such information as he may require. The Insurance Commissioner shall have the
right to refuse to issue or renew and to revoke any such certificate in his discretion. No such certificate
shall be valid, however, in any event after the first day of July of the year following the issuing of such
certificate. Renewal certificates may be issued upon the application of the company.

Any person who for compensation solicits or obtains insurance on behalf of any insurance company, or
transmits for a person other than himself an application for a policy of insurance to or from such company
or offers or assumes to act in the negotiating of such insurance, shall be an insurance agent within the
intent of this section, and shall thereby become liable to all the duties, requirements, liabilities, and
penalties to which an agent of such company is subject.

Any person or company violating the provisions of this section shall be fined in the sum of five hundred
pesos. On the conviction of any person acting as agent, sub-agent, or broker, of the commission of any
offense connected with the business of insurance, the Insurance Commissioner shall immediately revoke
the certificate of authority issued to him and no such certificate shall thereafter be issued to such
convicted person.
careful perusal of the provision shows
first paragraph - prohibits a person from acting as agent, sub-agent or broker in the solicitation or
procurement of applications for insurance without first procuring a certificate of authority so to act
from the Insurance Commissioner (no necessity that a person solicits an insurance for compensation in
order to be called an insurance agent)
second paragraph - defines who is an insurance agent within the intent of this section (a person is an
insurance agent if he solicits and obtains an insurance for compensation)
third paragraph - prescribes the penalty to be imposed for its violation
 The appellate court has established ultimately that she did not receive any compensation for the
issuance of the insurance policy of Eugenio Isidro.
It must be noted that the information, in the case at bar, does not allege that the negotiation of an
insurance contracts by the accused with Eugenio Isidro was one for compensation.
This allegation is essential, and having been omitted, a conviction of the accused could not be
sustained.
It is well-settled in Our jurisprudence that to warrant conviction, every element of the crime must be
alleged and proved.

CASE # 10

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-37867 February 22, 1982

BOARD OF ADMINISTRATORS, PHILIPPINES VETERANS ADMINISTRATION, petitioner,

vs.
HON. JOSE G. BAUTISTA, in his capacity as Presiding Judge of the CFI Manila, Branch III, and
CALIXTO V. GASILAO, respondents.

GUERRERO, J.:

This is a petition to review on certiorari the decision of respondent Court of First Instance of Manila,
Branch III, rendered on October 25, 1973 in Civil Case No. 90450 for mandamus filed by Calixto V.
Gasilao against the Board of Administrators of the Philippine Veterans Administration.

The facts as found by the Court a quo to have been established by the pleadings find by the parties are
stated in the decision under review from which We quote the following:

Calixto V. Gasilao, pauper litigant and petitioner in the above-entitled case, was a veteran
in good standing during World War II. On October 19, 1955, he filed a claim for
disability pension under Section 9, Republic Act No. 65. The claim was disapproved by
the Philippine Veterans Board (now Board of Administrators, Philippine Veterans
Administration).

Meanwhile, Republic Act 65 was amended by Republic Act 1362 on June 22, 1955 by
including as part of the benefit of P50.00, P10.00 a month for each of the unmarried
minor children below 18 of the veteran Republic Act No. 1362 was implemented by the
respondents only on July 1, 1955.

On June 18, 1957, Section 9 of Republic Act No. 65 was further amended by Republic
Act 1920 increasing the life pension of the veteran to P100.00 a month and maintaining
the P10.00 a month each for the unmarried minor children below 18.
 Fortunately, on August 8, 1968, the claim of the petitioner which was disapproved in
December, 1955 was reconsidered and his claim was finally approved at the rate of
P100.00 a month, life pension, and the additional Pl0.00 for each of his ten unmarried
minor children below 18. In view of the approval of the claim of petitioner, he requested
respondents that his claim be made retroactive as of the date when his original application
was flied or disapproved in 1955. Respondents did not act on his request.

On June 22, 1969, Section 9 of Republic Act No. 65 was amended by Republic Act No.
5753 which increased the life pension of the veteran to P200.00 a month and granted
besides P30.00 a month for the wife and P30.00 a month each for his unmarried minor
children below 18. In view of the new law, respondents increased the monthly pension of
petitioner to P125.00 effective January 15, 1971 due to insufficient funds to cover full
implementation. His wife was given a monthly pension of P7.50 until January 1, 1972
when Republic Act 5753 was fully implemented.

Petitioner now claims that he was deprived of his right to the pension from October 19,
1955 to June 21, 1957 at the rate of P50.00 per month plus P10.00 a month each for his
six (6) unmarried minor children below 18. lie also alleges that from June 22, 1957 to
August 7, 1968 he is entitled to the difference of P100.00 per month plus P10.00 a month
each for his seven (7) unmarried nor children below 18. Again, petitioner asserts the
difference of P100.00 per month, plus P30.00 a month for his wife and the difference of
P20.00 a month each for his four (4) unmarried minor children below 18 from June 22,
1969 up to January 14, 1971 and finally, the difference of P75.00 per month plus P30.00
a month for his wife and the difference of P20.00 a month for his three (3) unmarried
minor children below 18 from January 15, 1971 to December 31, 1971. 1

According to the records, the parties, through their respective counsels, filed on September 24, 1973 the
following stipulation of facts in the lower Court:

STIPULATION OF FACTS

COME NOW the parties thru their respective counsel, and unto this Honorable Court,
respectfully state that they agree on the following facts which may be considered as
proved without the need of the introduction of any evidence thereon, to wit:

1. Petitioner was a veteran in good standing during the last World War that took active
participation in the liberation drive against the enemy, and due to his military service, he
was rendered disabled.

2. The Philippine Veterans Administration, formerly the Philippine Veterans Board, (now
Philippine Veterans Affairs Office) is an agency of the Government charged with the
administration of different laws giving various benefits in favor of veterans and their
orphans/or widows and parents; that it has the power to adopt rules and regulations to
implement said laws and to pass upon the merits and qualifications of persons applying
for rights and privileges extended by this Act pursuant to such rules and regulations as it
may adopt to insure the speedy and honest fulfillment of its aims and purposes.

3. On July 23, 1955, petitioner filed a claim (Claim No. Dis-12336) for disability pension
under Section 9 of RA 65, with the Philippine Veterans Board (later succeeded by the
 Philippine Veterans Administration, now Philippine Veterans Affairs Office), alleging
that he was suffering from PTB, which he incurred in line of duty.

4. Due to petitioner's failure to complete his supporting papers and submit evidence to
establish his service connected illness, his claim was disapproved by the Board of the
defunct Philippine Veterans Board on December 18, 1955.

5. On August 8, 1968, petitioner was able to complete his supporting papers and, after
due investigation and processing, the Board of Administrators found out that his
disability was 100% thus he was awarded the full benefits of section 9 of RA 65, and was
therefore given a pension of P100.00 a month and with an additional P 10.00 a month for
each of his unmarried minor children pursuant to RA 1920, amending section 9 of RA 65.

6. RA 5753 was approved on June 22, 1969, providing for an increase in the basic
pension to P200.00 a month and the additional pension, to P30.00 a month for the wife
and each of the unmarried minor children. Petitioner's monthly pension was, however,
increased only on January 15, 1971, and by 25% of the increases provided by law, due to
the fact that it was only on said date that funds were released for the purpose, and the
amount so released was only sufficient to pay only 25% of the increase.

7. On January 15, 1972, more funds were released to implement fully RA 5753 and snow
payment in full of the benefits thereunder from said date.

WHEREFORE, it is respectfully prayed that a decision be rendered in accordance with

the foregoing stipulation of facts. It is likewise prayed that the parties be granted a period
of (15) days within which to file their memoranda. 2

Upon consideration of the foregoing and the Memoranda filed by the parties, the lower Court rendered
judgment against therein respondent Board of Administrators, the dispositive portion of which reads as
follows:

WHEREFORE, premises considered, judgment is hereby rendered for petitioner and the
respondents are ordered to make petitioner's pension effective as of December 18, 1955 at
the rate of P50.00 per month; and the rate increased to P100.00 per month plus P10.00
per month each for his ten unmarried minor children below 18 years of age from June 22,
1957 up to August 7..1968; to pay the difference of P100.00 per month plus P30.00 per
month and P20.00 per month each for his ten unmarried children below 18 years of age
from June 22, 1969 up to January 15, 1971, the difference of P75.00 per month plus
P22.50 per month for his wife and P20.00 per month each for his unmarried nor children
then below 18 years of age from January 16, 1971 up to December 31, 1971.

SO ORDERED.

Manila, October 25, 1973. 3

In its Petition before this Court, the Board of Administrators of the Philippine Veterans Administration,
through the Office of the Solicitor General, challenges the abovementioned decision of the Court a quo on
the following grounds:
 1. The lower Court erred in ordering the petitioners to retroact the effectivity of their
award to respondent Calixto V. Gasilao of full benefits under section 9 of RA 65 to
December 18, 1955, the date when his application was disapproved due to dis failure to
complete his supporting papers and submit evidence to establish his service connected
illness, and not August 8, 1968, the date when he was able to complete his papers and
allow processing and approval of his application.

2. The lower Court erred in ordering payment of claims which had prescribed.

3. The lower Court erred in allowing payment of claims under a law for which no funds
had been released. 4

The question raised under the first assigned error is: When should private respondent Gasilao's pension
benefits start

The lower Court, quoting excerpts from Our decision in Begosa vs. Chairman Philippine Veterans
Administration,5 ruled that Gasilao's pension benefits should retroact to the date of the disapproval of his
claim on December 18, 1955, and not commence from the approval thereon on August 8, 1968 as
contended by the Board of Administrators.

Petitioner maintains the stand that the facts of the Begosa case are not similar to those of the case at bar to
warrant an application of the ruling therein on the retroactivity of a pension award to the date of prior
disapproval of the claim. In the Begosa case, the Supreme Court speaking thru then Associate Justice,
now Chief Justice Fernando, affirmed the decision of the lower Court, and ruled in part as follows:

From the facts just set out, it will be noted that plaintiff filed his said claim for disability
pension as far back as March 4, 1955; that it was erroneously disapproved on June 21,
1955, because his dishonorable discharge from the Army was not a good or proper
ground for the said disapproval and that on reconsideration asked for by him on
November 1, 1957, which he continued to follow up, the Board of Administrators,
Philippine Veterans Administration, composed of herein defendants, which took over the
duties of the Philippine Veterans Board, finally approved his claim on September 2,
1964, at the rate of P30.00 a month. 6

Had it not been for the said error, it appears that there was no good ground to deny the
said claim, so that the latter was valid and meritorious even as of the date of its filing on
March 4, 1955, hence to make the same effective only as of the date of its approval on
September 2, 1964 according to defendant's stand would be greatly unfair and
prejudicial to plaintiff. 7

In other words, the favorable award which claimant Begosa finally obtained on September 2, 1964 was
made to retroact to the date of prior disapproval of the claim on June 2, 1955 for the reason that such
disapproval was erroneously made.

In the instant case, on the other hand, the herein claim of respondent Gasilao was denied on December 18,
1955 because of his "failure to complete his supporting papers and submit evidence to establish his
service-connected illness" (Stipulation of Facts, Par. 4, ante). Nonetheless, the Stipulation of Facts
admitted in par. 1 that "Petitioner was a veteran in good standing during the last World War that took
active participation in the liberation drive against the enemy, and due to his military service, he was
rendered disabled." From this admission in par. 1, it can reasonably be deduced that the action on the
claim of Gasilao was merely suspended by the Philippine Veterans Administration pending the
completion of the required supporting papers and evidence to establish his service-connected illness.
Hence, Our ruling in the Begosa case making retroactive the award in favor of the veteran still holds.

Republic Act No. 65 otherwise known as the Veterans' Bill of Rights, as amended, does not explicitly
provide for the effectivity of pension awards. However, petitioner seeks to remedy this legislative
deficiency by citing Section 15 of the law which in part reads as follows:

Sec. 15. Any person who desires to take advantage of the rights and privileges provided
for in this Act should file his application with the Board ...

Petitioner contends that since the foregoing section impliedly requires that the application filed should
first be approved by the Board of Administrators before the claimant could receive his pension, therefore,
an award of pension benefits should commence form the date of he approval of the application.

This stand of the petitioner does not appear to be in consonance with the spirit and intent of the law,
considering that Republic Act 65 is a veteran pension law which must be accorded a liberal construction
and interpretation in order to favor those entitled to the rights, privileges and benefits granted thereunder,
among which are the right to resume old positions in the government, educational benefits, the privilege
to take promotional examinations, a life pension for the incapacitated, pensions for widow and children,
hospitalization and medical care benefits.

As it is generally known, the purpose of Congress in granting veteran pensions is to compensate, as far as
may be, a class of men who suffered in the service for the hardships they endured and the dangers they
encountered,8 and more particularly, those who have become incapacitated for work owing to sickness,
disease or injuries sustained while in line of duty. 9 A veteran pension law is, therefore, a governmental
expression of gratitude to and recognition of those who rendered service for the country, especially during
times of war or revolution, by extending to them regular monetary aid. For this reason, it is the general
rule that a liberal construction is given to pension statutes in favor of those entitled to pension. Courts
tend to favor the pensioner, but such constructional preference is to be considered with other guides to
interpretation, and a construction of pension laws must depend on its own particular language. 10

Significantly, the original text of RA 65 provided that:

Sec. 6. It also shall be the duty of the Board (then the Philippine Veterans Board) to pass
upon the merits and qualifications of persons applying for the rights and/or privileges
extended by this Act, pursuant to such rules as it may adopt to insure the speedy and
honest fulfillment of its aims and purposes. (Emphasis supplied.)

The foregoing provision clearly makes it incumbent upon the implementing Board to carry out the
provisions of the statute in the most expeditious way possible and without unnecessary delay. In
the Begosa case, it took nine years (from June 2, 1955 to September 2, 1964) before the claimant finally
obtained his pension grant, whereas in the instant case, it took about twelve years (from December, 1955
to August 8, 1968) for respondent Gasilao to receive his pension claim. To Our mind, it would be more in
consonance with the spirit and intentment of the law that the benefits therein granted be received and
enjoyed at the earliest possible time by according retroactive effect to the grant of the pension award as
We have done in the Begosa case.

On the other hand, if the pension awards are made effective only upon approval of the corresponding
application which would be dependent on the discretion of the Board of Administrators which as noted
above had been abused through inaction extending to nine years, even to twelve years, the noble and
humanitarian purposes for which the law had enacted could easily be thwarted or defeated.

On the issue of prescription, petitioner cites Article 1144 of the Civil Code which provides:

Art. 1144. The following actions must be brought within ten years from the time the right
of action accrues:

(1) Upon a written contract;

(2) Upon an obligation created by law; and

(3) Upon a judgment.

Petitioner now contends that since the action was filed in the lower Court on April 13, 1973 seeking the
payment of alleged claims which have accrued more than ten (10) years prior to said date, the same
should have been disallowed as to the prescribed claims.

The obligation of the government to pay pension was created by law (Sec. 9, R.A. 65). Hence, the ten-
year prescriptive period should be counted from the date of passage of the law which is September 25,
1946, the reason being that it is only from said date that private respondent could have filed his
application. Taking September 25, 1946 as the point of reference, the actual filing of Gasilao's application
on July 23, 1955 was clearly made within and effectively interrupted the prescriptive period. It is not the
date of the commencement of the action in the lower Court which should be reckoned with, for it was not
on said date that Gasilao first sought to claim his pension benefits, but on July 23, 1955 when he filed his
application with the defunct Philippine Veterans Board. As We had the occasion to state in the case
of Vda. de Nator vs. C.I.R., 11 "the basis of prescription is the unwarranted failure to bring the matter to
the attention of those who are by law authorized to take cognizance thereof."

The Stipulation of Facts do not show and neither do the records indicate when Gasilao attempted to
reinstate his claim after the same was disapproved on December 18, 1955. What is evident is that he did
take steps to reinstate his claim because on August 8, 1968, herein petitioner finally approved his
application. We find it more logical to presume that upon being properly notified of the disapproval of his
application and the reasons therefor, Gasilao, being the interested party that he was proceeded to work for
the completion of the requirements of the Board, as in fact he was successful in meeting such
requirements. There is nothing in the record to show intentional abandonment of the claim to as to make
the prescriptive period continue to run again.

The third ground relied upon in support of this Petition involves the issue as to whether or not the
payment of increased pension provided in the amendatory Act, R.A. 5753, could be ordered, even where
there was no actual release of funds for the purpose, although the law itself expressly provided for an
appropriation. In the case ofBoard of Adminitrators, Philippine Veterans Administration vs. Hon. Agcoili,
et al., 12 penned by Chief Justice Fred Ruiz Castro, the same issue was treated in this wise:

... The inability of the petitioner to pay Abrera the differential of P60.00 in monthly
pension is attributed by it, in its own words, "to the failure of Congress to appropriate the
necessary funds to cover all claims for benefits, pensions and allowances." And the
petitioner states that it has "no alternative but to suspend (full implementation of said
laws until such time, as sufficient funds have been appropriated by Congress" to cover
the total amount of all approved claims.
 We find the explanation of the petitioner satisfactory, but we nevertheless hold that as a
matter of law Abrera is entitled to a monthly pension of P120.00 from January 1, 1972
when Republic Act 5753 was implemented up to the present, if his physical disability
rating has continued and continues to be 60%. Payment to him of what is due him from
January 1, 1972 must however remain subject to the availability of Government funds
duly set aside for the purpose and subject further periodic re-rating of his physical
disability.

But even if we have thus defined the precise terms, nature and scope of the entitlement of
the respondent Abrera, for the guidance of petitioner, we nevertheless refrain from
ordering the petitioner to pay the amount of P120.00 per month from January 1, 1972
that is due to the respondent by virtue of the mandate of section 9 of Republic Act 65, as
amended by Republic Act 5753, because the Government has thus far not provided the
necessary funds to pay all valid claims duly approved under the authority of said
statute. 13 (Emphasis supplied.)

ACCORDINGLY, the judgment of the Court a quo is hereby modified to read as follows:

WHEREFORE, premises considered, the Board of Administrators of the Philippine

Veterans Administration (now the Philippine Veterans Affairs Office) is hereby ordered
to make Gasilao's pension effective December 18, 1955 at the rate of P50-00 per month
plus P10.00 per month for each of his then unmarried minor children below 18, and the
former amount increased to P100.00 from June 22, 1957 to August 7, 1968.

The differentials in pension to which said Gasilao, his wife and his unmarried minor
children below 18 are entitled for the period from June 22, 1969 to January 14, 1972 by
virtue of Republic Act No. 5753 are hereby declared subject to the availability of
Government funds appropriated for the purpose.

SO ORDERED.

Board of Administrators of the PVA v. Bautista GRL-37867,22February1982(112SRCA59)FirstDivision,Guerrero(p):5

concurring Facts: Calixto Gasilao was a veteran in good standing during the last World War that took
activeparticipation in theliberation drive against the enemy, and due to his military service, he
wasrendered disabled. The Philippine VeteransAdministration, formerly the Philippine Veterans
Board,(now Philippine Veterans Affairs Office) is an agency of the Government charged with
theadministration of different laws giving various benefits in favor of veterans andtheir orphans/orwidows
and parents. On July 23, 1955, Gasilao filed a claim for disability pension under Section 9of Republic Act
65, with the Philippine Veterans Board, alleging that he was suffering from PulmonaryTuberculosis
(PTB), which he incurred in line of duty. Due to Gasilaos failure to complete hissupporting papers and
submit
evidence to establish his service-connected illness, his claim wasdisapproved by the Board on 18
December 1955.On 8 August 1968, Gasilao was able to complete hissupporting papers and, after due
investigation and processing,the Board of Administrators found outthat his disability was 100% thus he
was awarded the full benefits of section 9of Republic Act 65.Later on, Republic Act 5753 was approved
on 22 June 1969, providing for an increase in the
basicpension and additional pension for the wife and each of the unmarried minor children.
Gasilaosmonthly
pension was, however, increased only on 15 January 1971, and by 25% of the increasesprovided by law,
due to thefact that it was only on said date that funds were released for thepurpose, and the amount so
released was onlysufficient to pay only 25% of the increase. On 15January 1972, more funds were
released to implement fullyRepublic Act 5753 and allow payment infull of the benefits thereunder from
said date.In 1973, Gasilao filed anaction against the Board to recover the pension, which he claims he
isentitled to, from July 1955, when he first filedhis application for pension, up to 1968 when his
pensionwas finally approved. The Board contends, however, basedon Section 15 of Republic Act 65,
thatsince the section impliedly requires that the application filed should first beapproved by the Board of
Administrators before the claimant could receive his pension, therefore, an award of pension
benefitsshould commence from the date of approval of the application. Issue:Whether Gasilao is entitled to
the pension from 1955 instead of from 1968. Held: As it is generally known, the purpose of Congress
in granting veteran pensions is to compensatea class of men whosuffered in the service for the hardships
they endured and the dangers theyencountered, and more particularly, thosewho have become
incapacitated for work owing to sickness,disease or injuries sustained while in line of duty. Aveteran
pension law is, therefore, a governmentalexpression of gratitude to and recognition of those who
renderedservice for the country, especiallyduring times of war or revolution, by extending to them regular
monetary aid. Forthis reason, it is thegeneral rule that a liberal construction is given to pension statutes in
favor of those entitledtopension. Courts tend to favor the pensioner, but such constructional preference is
to be consideredwith otherguides to interpretation, and a construction of pension laws must depend on its
ownparticular language. In thepresent case, Republic Act 65 is a veteran pension law which must
beaccorded a liberal construction andinterpretation in order to favor those entitled to rights, privileges,and
benefits granted thereunder, among which arethe right to resume old positions in government,educational
benefits, the privilege to take promotion examinations, alife pension for the incapacited,pension for
widow and children, and hospitalization and medical benefits. Upholdingthe Board that the pension
awards are made effective only upon approval of the application, this would be dependentupon
thediscretion of the Board which had been abused in this case through inaction extending for 12years.
Such stand,
therefore does not appear to be, or simply is not, in consonance with the spirit andintent of the law.
Gasilaos claim
was sustained.The Supreme Court modified the judgment of the court a quo, ordering the Board of
Administratorsof
the Philippine Veterans Administration (now the Philippine Veterans Affairs Office) to make
Gasilaospension
effective 18 December 1955 at the rate of P50.00 per month plus P10.00 per month for eachof his then
unmarriedminor children below 18, and the former amount increased to P100.00 from 22June 1957 to 7
August 1968; anddeclaring the differentials in pension to which said Gasilao, his wifeand his unmarried
minor children below 18 areentitled for the period from 22 June 1969 to 14January 1972 by virtue of
Republic Act 5753 subject to theavailability of Government fundsappropriated for the purpose

PERSONS AND FAMILY RELATIONS CASES

Case # 1

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. 101949 December 1, 1994

THE HOLY SEE, petitioner,

vs.
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial Court of
Makati, Branch 61 and STARBRIGHT SALES ENTERPRISES, INC., respondents.

Padilla Law Office for petitioner.

Siguion Reyna, Montecillo & Ongsiako for private respondent.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court to reverse and set aside the
Orders dated June 20, 1991 and September 19, 1991 of the Regional Trial Court, Branch 61, Makati,
Metro Manila in Civil Case No. 90-183.

The Order dated June 20, 1991 denied the motion of petitioner to dismiss the complaint in Civil Case No.
90-183, while the Order dated September 19, 1991 denied the motion for reconsideration of the June
20,1991 Order.

Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, Italy, and is
represented in the Philippines by the Papal Nuncio.

Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the real estate
business.

This petition arose from a controversy over a parcel of land consisting of 6,000 square meters (Lot 5-A,
Transfer Certificate of Title No. 390440) located in the Municipality of Paraaque, Metro Manila and
registered in the name of petitioner.

Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer Certificates of Title Nos.
271108 and 265388 respectively and registered in the name of the Philippine Realty Corporation (PRC).

The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as agent to the
sellers. Later, Licup assigned his rights to the sale to private respondent.

In view of the refusal of the squatters to vacate the lots sold to private respondent, a dispute arose as to
who of the parties has the responsibility of evicting and clearing the land of squatters. Complicating the
relations of the parties was the sale by petitioner of Lot 5-A to Tropicana Properties and Development
Corporation (Tropicana).

On January 23, 1990, private respondent filed a complaint with the Regional Trial Court, Branch 61,
Makati, Metro Manila for annulment of the sale of the three parcels of land, and specific performance and
damages against petitioner, represented by the Papal Nuncio, and three other defendants: namely, Msgr.
Domingo A. Cirilos, Jr., the PRC and Tropicana (Civil Case No.
90-183).

The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf of petitioner and the PRC,
agreed to sell to Ramon Licup Lots 5-A, 5-B and 5-D at the price of P1,240.00 per square meters; (2) the
agreement to sell was made on the condition that earnest money of P100,000.00 be paid by Licup to the
sellers, and that the sellers clear the said lots of squatters who were then occupying the same; (3) Licup
paid the earnest money to Msgr. Cirilos; (4) in the same month, Licup assigned his rights over the
property to private respondent and informed the sellers of the said assignment; (5) thereafter, private
respondent demanded from Msgr. Cirilos that the sellers fulfill their undertaking and clear the property of
squatters; however, Msgr. Cirilos informed private respondent of the squatters' refusal to vacate the lots,
proposing instead either that private respondent undertake the eviction or that the earnest money be
returned to the latter; (6) private respondent counterproposed that if it would undertake the eviction of the
squatters, the purchase price of the lots should be reduced from P1,240.00 to P1,150.00 per square meter;
(7) Msgr. Cirilos returned the earnest money of P100,000.00 and wrote private respondent giving it seven
days from receipt of the letter to pay the original purchase price in cash; (8) private respondent sent the
earnest money back to the sellers, but later discovered that on March 30, 1989, petitioner and the PRC,
without notice to private respondent, sold the lots to Tropicana, as evidenced by two separate Deeds of
Sale, one over Lot 5-A, and another over Lots 5-B and 5-D; and that the sellers' transfer certificate of title
over the lots were cancelled, transferred and registered in the name of Tropicana; (9) Tropicana induced
petitioner and the PRC to sell the lots to it and thus enriched itself at the expense of private respondent;
(10) private respondent demanded the rescission of the sale to Tropicana and the reconveyance of the lots,
to no avail; and (11) private respondent is willing and able to comply with the terms of the contract to sell
and has actually made plans to develop the lots into a townhouse project, but in view of the sellers'
breach, it lost profits of not less than P30,000.000.00.

Private respondent thus prayed for: (1) the annulment of the Deeds of Sale between petitioner and the
PRC on the one hand, and Tropicana on the other; (2) the reconveyance of the lots in question; (3)
specific performance of the agreement to sell between it and the owners of the lots; and (4) damages.

On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the complaint petitioner for
lack of jurisdiction based on sovereign immunity from suit, and Msgr. Cirilos for being an improper
party. An opposition to the motion was filed by private respondent.

On June 20, 1991, the trial court issued an order denying, among others, petitioner's motion to dismiss
after finding that petitioner "shed off [its] sovereign immunity by entering into the business contract in
question" (Rollo, pp. 20-21).

On July 12, 1991, petitioner moved for reconsideration of the order. On August 30, 1991, petitioner filed
a "Motion for a Hearing for the Sole Purpose of Establishing Factual Allegation for claim of Immunity as
a Jurisdictional Defense." So as to facilitate the determination of its defense of sovereign immunity,
petitioner prayed that a hearing be conducted to allow it to establish certain facts upon which the said
defense is based. Private respondent opposed this motion as well as the motion for reconsideration.

On October 1, 1991, the trial court issued an order deferring the resolution on the motion for
reconsideration until after trial on the merits and directing petitioner to file its answer (Rollo, p. 22).

Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes the privilege of sovereign
immunity only on its own behalf and on behalf of its official representative, the Papal Nuncio.
On December 9, 1991, a Motion for Intervention was filed before us by the Department of Foreign
Affairs, claiming that it has a legal interest in the outcome of the case as regards the diplomatic immunity
of petitioner, and that it "adopts by reference, the allegations contained in the petition of the Holy See
insofar as they refer to arguments relative to its claim of sovereign immunity from suit" (Rollo, p. 87).

Private respondent opposed the intervention of the Department of Foreign Affairs. In compliance with the
resolution of this Court, both parties and the Department of Foreign Affairs submitted their respective
memoranda.

II

A preliminary matter to be threshed out is the procedural issue of whether the petition for certiorari under
Rule 65 of the Revised Rules of Court can be availed of to question the order denying petitioner's motion
to dismiss. The general rule is that an order denying a motion to dismiss is not reviewable by the appellate
courts, the remedy of the movant being to file his answer and to proceed with the hearing before the trial
court. But the general rule admits of exceptions, and one of these is when it is very clear in the records
that the trial court has no alternative but to dismiss the complaint (Philippine National Bank v. Florendo,
206 SCRA 582 [1992]; Zagada v. Civil Service Commission, 216 SCRA 114 [1992]. In such a case, it
would be a sheer waste of time and energy to require the parties to undergo the rigors of a trial.

The other procedural question raised by private respondent is the personality or legal interest of the
Department of Foreign Affairs to intervene in the case in behalf of the Holy See (Rollo, pp. 186-190).

In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic
immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the
court that said defendant is entitled to immunity.

In the United States, the procedure followed is the process of "suggestion," where the foreign state or the
international organization sued in an American court requests the Secretary of State to make a
determination as to whether it is entitled to immunity. If the Secretary of State finds that the defendant is
immune from suit, he, in turn, asks the Attorney General to submit to the court a "suggestion" that the
defendant is entitled to immunity. In England, a similar procedure is followed, only the Foreign Office
issues a certification to that effect instead of submitting a "suggestion" (O'Connell, I International Law
130 [1965]; Note: Immunity from Suit of Foreign Sovereign Instrumentalities and Obligations, 50 Yale
Law Journal 1088 [1941]).

In the Philippines, the practice is for the foreign government or the international organization to first
secure an executive endorsement of its claim of sovereign or diplomatic immunity. But how the
Philippine Foreign Office conveys its endorsement to the courts varies. In International Catholic
Migration Commission v. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs just sent a
letter directly to the Secretary of Labor and Employment, informing the latter that the respondent-
employer could not be sued because it enjoyed diplomatic immunity. In World Health Organization v.
Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a telegram to that
effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to
request the Solicitor General to make, in behalf of the Commander of the United States Naval Base at
Olongapo City, Zambales, a "suggestion" to respondent Judge. The Solicitor General embodied the
"suggestion" in a Manifestation and Memorandum as amicus curiae.
In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with
this Court to be allowed to intervene on the side of petitioner. The Court allowed the said Department to
file its memorandum in support of petitioner's claim of sovereign immunity.

In some cases, the defense of sovereign immunity was submitted directly to the local courts by the
respondents through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v.
Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA 644
[1990] and companion cases). In cases where the foreign states bypass the Foreign Office, the courts can
inquire into the facts and make their own determination as to the nature of the acts and transactions
involved.

III

The burden of the petition is that respondent trial court has no jurisdiction over petitioner, being a foreign
state enjoying sovereign immunity. On the other hand, private respondent insists that the doctrine of non-
suability is not anymore absolute and that petitioner has divested itself of such a cloak when, of its own
free will, it entered into a commercial transaction for the sale of a parcel of land located in the
Philippines.

A. The Holy See

Before we determine the issue of petitioner's non-suability, a brief look into its status as a sovereign state
is in order.

Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as the Holy
See, was considered a subject of International Law. With the loss of the Papal States and the limitation of
the territory under the Holy See to an area of 108.7 acres, the position of the Holy See in International
Law became controversial (Salonga and Yap, Public International Law 36-37 [1992]).

In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive
dominion and sovereign jurisdiction of the Holy See over the Vatican City. It also recognized the right of
the Holy See to receive foreign diplomats, to send its own diplomats to foreign countries, and to enter into
treaties according to International Law (Garcia, Questions and Problems In International Law, Public and
Private 81 [1948]).

The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy
See absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the field
of international relations" (O'Connell, I International Law 311 [1965]).

In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested
in the Holy See or in the Vatican City. Some writers even suggested that the treaty created two
international persons the Holy See and Vatican City (Salonga and Yap, supra, 37).

The Vatican City fits into none of the established categories of states, and the attribution to it of
"sovereignty" must be made in a sense different from that in which it is applied to other states (Fenwick,
International Law 124-125 [1948]; Cruz, International Law 37 [1991]). In a community of national states,
the Vatican City represents an entity organized not for political but for ecclesiastical purposes and
international objects. Despite its size and object, the Vatican City has an independent government of its
own, with the Pope, who is also head of the Roman Catholic Church, as the Holy See or Head of State, in
conformity with its traditions, and the demands of its mission in the world. Indeed, the world-wide
interests and activities of the Vatican City are such as to make it in a sense an "international state"
(Fenwick, supra., 125; Kelsen, Principles of International Law 160 [1956]).

One authority wrote that the recognition of the Vatican City as a state has significant implication that it
is possible for any entity pursuing objects essentially different from those pursued by states to be invested
with international personality (Kunz, The Status of the Holy See in International Law, 46 The American
Journal of International Law 308 [1952]).

Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and
not in the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See that
is the international person.

The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy
See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine
government since 1957 (Rollo, p. 87). This appears to be the universal practice in international relations.

B. Sovereign Immunity

As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the generally accepted
principles of International Law. Even without this affirmation, such principles of International Law are
deemed incorporated as part of the law of the land as a condition and consequence of our admission in the
society of nations (United States of America v. Guinto, 182 SCRA 644 [1990]).

There are two conflicting concepts of sovereign immunity, each widely held and firmly established.
According to the classical or absolute theory, a sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign. According to the newer or restrictive theory, the immunity
of the sovereign is recognized only with regard to public acts or acts jure imperii of a state, but not with
regard to private acts or acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public
International Law 194 [1984]).

Some states passed legislation to serve as guidelines for the executive or judicial determination when an
act may be considered as jure gestionis. The United States passed the Foreign Sovereign Immunities Act
of 1976, which defines a commercial activity as "either a regular course of commercial conduct or a
particular commercial transaction or act." Furthermore, the law declared that the "commercial character of
the activity shall be determined by reference to the nature of the course of conduct or particular
transaction or act, rather than by reference to its purpose." The Canadian Parliament enacted in 1982 an
Act to Provide For State Immunity in Canadian Courts. The Act defines a "commercial activity" as any
particular transaction, act or conduct or any regular course of conduct that by reason of its nature, is of a
"commercial character."

The restrictive theory, which is intended to be a solution to the host of problems involving the issue of
sovereign immunity, has created problems of its own. Legal treatises and the decisions in countries which
follow the restrictive theory have difficulty in characterizing whether a contract of a sovereign state with a
private party is an act jure gestionis or an act jure imperii.

The restrictive theory came about because of the entry of sovereign states into purely commercial
activities remotely connected with the discharge of governmental functions. This is particularly true with
respect to the Communist states which took control of nationalized business activities and international
trading.
This Court has considered the following transactions by a foreign state with private parties as acts jure
imperii: (1) the lease by a foreign government of apartment buildings for use of its military officers
(Syquia v. Lopez, 84 Phil. 312 [1949]; (2) the conduct of public bidding for the repair of a wharf at a
United States Naval Station (United States of America v. Ruiz, supra.); and (3) the change of
employment status of base employees (Sanders v. Veridiano, 162 SCRA 88 [1988]).

On the other hand, this Court has considered the following transactions by a foreign state with private
parties as acts jure gestionis: (1) the hiring of a cook in the recreation center, consisting of three
restaurants, a cafeteria, a bakery, a store, and a coffee and pastry shop at the John Hay Air Station in
Baguio City, to cater to American servicemen and the general public (United States of America v.
Rodrigo, 182 SCRA 644 [1990]); and (2) the bidding for the operation of barber shops in Clark Air Base
in Angeles City (United States of America v. Guinto, 182 SCRA 644 [1990]). The operation of the
restaurants and other facilities open to the general public is undoubtedly for profit as a commercial and
not a governmental activity. By entering into the employment contract with the cook in the discharge of
its proprietary function, the United States government impliedly divested itself of its sovereign immunity
from suit.

In the absence of legislation defining what activities and transactions shall be considered "commercial"
and as constituting acts jure gestionis, we have to come out with our own guidelines, tentative they may
be.

Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate
test. Such an act can only be the start of the inquiry. The logical question is whether the foreign state is
engaged in the activity in the regular course of business. If the foreign state is not engaged regularly in a
business or trade, the particular act or transaction must then be tested by its nature. If the act is in pursuit
of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is not
undertaken for gain or profit.

As held in United States of America v. Guinto, (supra):

There is no question that the United States of America, like any other state, will be
deemed to have impliedly waived its non-suability if it has entered into a contract in its
proprietary or private capacity. It is only when the contract involves its sovereign or
governmental capacity that no such waiver may be implied.

In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate
business, surely the said transaction can be categorized as an act jure gestionis. However, petitioner has
denied that the acquisition and subsequent disposal of Lot 5-A were made for profit but claimed that it
acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines. Private
respondent failed to dispute said claim.

Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was
made not for commercial purpose, but for the use of petitioner to construct thereon the official place of
residence of the Papal Nuncio. The right of a foreign sovereign to acquire property, real or personal, in a
receiving state, necessary for the creation and maintenance of its diplomatic mission, is recognized in the
1961 Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the
Philippine Senate and entered into force in the Philippines on November 15, 1965.

In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and
administrative jurisdiction of the receiving state over any real action relating to private immovable
property situated in the territory of the receiving state which the envoy holds on behalf of the sending
state for the purposes of the mission. If this immunity is provided for a diplomatic envoy, with all the
more reason should immunity be recognized as regards the sovereign itself, which in this case is the Holy
See.

The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a
governmental character. Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon made
it almost impossible for petitioner to use it for the purpose of the donation. The fact that squatters have
occupied and are still occupying the lot, and that they stubbornly refuse to leave the premises, has been
admitted by private respondent in its complaint (Rollo, pp. 26, 27).

The issue of petitioner's non-suability can be determined by the trial court without going to trial in the
light of the pleadings, particularly the admission of private respondent. Besides, the privilege of sovereign
immunity in this case was sufficiently established by the Memorandum and Certification of the
Department of Foreign Affairs. As the department tasked with the conduct of the Philippines' foreign
relations (Administrative Code of 1987, Book IV, Title I, Sec. 3), the Department of Foreign Affairs has
formally intervened in this case and officially certified that the Embassy of the Holy See is a duly
accredited diplomatic mission to the Republic of the Philippines exempt from local jurisdiction and
entitled to all the rights, privileges and immunities of a diplomatic mission or embassy in this country
(Rollo, pp. 156-157). The determination of the executive arm of government that a state or instrumentality
is entitled to sovereign or diplomatic immunity is a political question that is conclusive upon the courts
(International Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]). Where the plea of
immunity is recognized and affirmed by the executive branch, it is the duty of the courts to accept this
claim so as not to embarrass the executive arm of the government in conducting the country's foreign
relations (World Health Organization v. Aquino, 48 SCRA 242 [1972]). As in International Catholic
Migration Commission and in World Health Organization, we abide by the certification of the
Department of Foreign Affairs.

Ordinarily, the procedure would be to remand the case and order the trial court to conduct a hearing to
establish the facts alleged by petitioner in its motion. In view of said certification, such procedure would
however be pointless and unduly circuitous (Ortigas & Co. Ltd. Partnership v. Judge Tirso Velasco, G.R.
No. 109645, July 25, 1994).

IV

Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public
International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign
can ask his own government to espouse his cause through diplomatic channels.

Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims
against the Holy See. Its first task is to persuade the Philippine government to take up with the Holy See
the validity of its claims. Of course, the Foreign Office shall first make a determination of the impact of
its espousal on the relations between the Philippine government and the Holy See (Young, Remedies of
Private Claimants Against Foreign States, Selected Readings on Protection by Law of Private Foreign
Investments 905, 919 [1964]). Once the Philippine government decides to espouse the claim, the latter
ceases to be a private cause.

According to the Permanent Court of International Justice, the forerunner of the International Court of
Justice:
 By taking up the case of one of its subjects and by reporting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own
rights its right to ensure, in the person of its subjects, respect for the rules of
international law (The Mavrommatis Palestine Concessions, 1 Hudson, World Court
Reports 293, 302 [1924]).

WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183
against petitioner is DISMISSED.

SO ORDERED.

JUL

26
Constitutional law 1 (case digest 4) Doctrine of State Immunity
*some of the case digests are not mine (sources are linked), I will specify if the digests are mine ornot :)--
----------------------------------------------------------------------------------------------------------Basis
G.R. No. 79253 March 1, 1993

UNITED STATES OF AMERICA and MAXINE BRADFORD, petitioners,vs.

HON. LUIS R. REYES, as Presiding Judge of Branch 22, Regional Trial Court of Cavite, andNELIA T.
MONTOYA, respondents.

FACTS:
Private respondent, hereinafter referred to as Montoya, is an American citizen who, at thetime material to
this case, was employed as an identification (I.D.) checker at the U.S. NavyExchange (NEX) at the Joint
United States Military Assistance Group (JUSMAG) headquarters inQuezon City. She is married to one
Edgardo H. Montoya, a Filipino-American serviceman employedby the U.S. Navy and stationed in San
Francisco, California. Petitioner Maxine Bradford, hereinafterreferred to as Bradford, is likewise an
American citizen who was the activity exchange manager atthe said JUSMAG Headquarters.As a
consequence of an incident which occurred on 22 January 1987 whereby her body andbelongings were
searched after she had bought some items from the retail store of the NEXJUSMAG, where she had
purchasing privileges, and while she was already at the parking area,Montoya filed on7 May 1987 a
complaint 1 with the Regional Trial Court of her place of residence

Cavite

against Bradford for damages due to the oppressive and discriminatory acts committed by the latterin
excess of her authority as store manager of the NEX JUSMAG.In support of the motion, the petitioners
claimed that JUSMAG, composed of an Army, Navy and AirGroup, had been established under the
Philippine-United States Military Assistance Agreemententered into on 21 March 1947 to implement the
United States' program of rendering militaryassistance to the Philippines. Its headquarters in Quezon City
is considered a temporary installationunder the provisions of Article XXI of the Military Bases
Agreement of 1947. Thereunder, "it ismutually agreed that the United States shall have the rights, power
and authority within the baseswhich are necessary for the establishment, use and operation and defense
thereof or appropriate forthe control thereof." The 1979 amendment of the Military Bases Agreement
made it clear that theUnited States shall have "the use of certain facilities and areas within the bases and
shall haveeffective command and control over such facilities and over United States personnel,
employees,equipment and material." JUSMAG maintains, at its Quezon City headquarters, a Navy
Exchangereferred to as the NEX-JUSMAG. Checking of purchases at the NEX is a routine
procedureobserved at base retail outlets to protect and safeguard merchandise, cash and equipment
pursuantto paragraphs 2 and 4(b) of NAVRESALEACT SUBIC INST. 5500.1. 7 Thus, Bradford's order
tohave purchases of all employees checked on 22 January 1987 was made in the exercise of herduties as
Manager of the NEX-JUSMAG.

ISSUES:
whether or not the trial court committed grave abuse of discretion in denying the motion todismiss based
on the following grounds:(a) the complaint in Civil Case No. 224-87 is in effect a suit against the public
petitioner, a foreignsovereign immune from suit which has not given consent to such suit and(b) Bradford
is immune from suit for acts done by her in the performance of her official functions asmanager of the
U.S. Navy Exchange of JUSMAG pursuant to the Philippines-United States MilitaryAssistance
Agreement of 1947 and the Military Bases Agreement of 1947, as amended.
HELD:
The petition was DENIED for lack of merit. There can be no doubt that on the basis of theallegations in
the complaint, Montoya has a sufficient and viable cause of action. Bradford'spurported non-suability on
the ground of state immunity is then a defense which may be pleaded inthe answer and proven at the
trial.Since Bradford did not file her Answer within the reglementary period, the trial court
correctlydeclared her in default upon motion of the private respondent. The judgment then rendered
againsther on 10 September 1987 after the ex parte reception of the evidence for the private
respondentand before this Court issued the Temporary Restraining Order on 7 December 1987 cannot
beimpugned. The filing of the instant petition and the knowledge thereof by the trial court did notprevent
the latter from proceeding with Civil Case No.224-87. "It is elementary that the mere pendency of a
special civil action for certiorari, commenced inrelation to a case pending before a lower Court, does not
interrupt the course of the latter whenthere is no writ of injunction restraining it."
SALIENT POINTS:
The
Doctrine of State Immunity
sometimes called
the royal prerogative of dishonesty
as declaredin the Constitution affirms,
The state may not be sued without its consent".
This provision is merely recognition of the sovereign character of the state andan express affirmationof
the unwritten rule insulating it from the jurisdiction of the courtsof justice.According to JusticeHolmes
the doctrine of non-suability is based not on any formalconception or obsolete theory but onthe logical
and practical ground that there can be no legal right against the authority, which makesthe law on which
the right depends. Another justification is the practical consideration that thedemands and inconveniences
of litigation will divert the time and resources of the state from themore pressing matters demanding its
attention, to the prejudice of the public welfare.The doctrine is also available to foreign states insofar as
they are sought to be sued in the courts ofthe local state. The added basis in this case is the principle of
the sovereignequality of states, underwhichone state cannot assert jurisdiction over another inviolation of
the maxim
par in parem non habet imperium. To do so would unduly vex the peace of nations."

Exemption: Article 31 of the Vienna Convention on Diplomatic Relations admits ofexceptions. It reads:
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.He shall
also enjoy immunity from its civil and administrative jurisdiction except in the case
of:xxx xxx xxx(c) an action relating to any professional or commercial activity exercised by the diplomati
c

agent in the receiving State outside his official functions (Emphasis supplied).How may consent of the
State to be sued given?The consent of the state to be sued may be given expressly or impliedly. Express
consent may bemanifested either through a general law or a special law. Implied consent is given when
the Stateitself commences litigation or when it enters into a contract. The general law providing for
thestanding consent of the State to be sued is Act No.3083, declaring that
the Government of the
Philippine Islands hereby consents and submits to be sued upon any moneyed claim involvingliability
arising from contract,express or implied, which could serve as a basis of civil action between
private parties.
Under C.A. No. 327 as amended by P.D. No. 1445, a claim against the government mustfirst be filedwith
the Commission on Audit, which must act upon it within sixty (60)days. Rejection of the claimwill
authorize the claimant to elevate the matter to theSupreme Court on certiorari and in effect suethe state
with its consent.The express consent of the State to be sued must be embodied in a dulyenacted statute
and may not be given by a mere counsel of the government.It should also beobserved that when the State
gives its consent to be sued, it does not thereby also to the executionof the judgment against it. Such
execution will require another waiver, lacking which the decisioncannot be enforced against the
State.When is a suit against a public official deemed to be a suit against the State?Because actions are
rarely instituted directly against the Republic of the Philippines, theusualpractice is to file such claims not
against the State itself but against the officer of the governmentwho is supposed to discharge the
responsibility or grant the redresseddemanded. It is importantthen, to determine if the State is the real
party in interest, thatis, that the claim if proved will be adirect liability of the State and not merely of
theofficer impleaded. If this is shown, the action can bedismissed as a suit against the Stateunless its
immunity had been previously waived.There are many instances when a public officer may be sued in his
official capacitywithout thenecessity of first obtaining the consent of the State to be sued. A publicofficer
may be impleaded torequire him to do a duty required by law, or to restrain himfrom doing an act alleged
to beunconstitutional or illegal, or to recover from him taxesunlawfully assessed or collected.It has been
held also that where an action is filed againsta public officer for recovery only of title orpossession of
property claimed to be held byhim in his official capacity, the said action is not a suitagainst the State for
which prior waiver of immunity is required. But it is different where there is anaddition a claim for
recovery of damages, such as accrued rentals, inasmuch as it allowance wouldrequire thegovernment to
appropriate the necessary amount for the satisfaction of the judgment.Assuming the decision is rendered
against the public officer impleaded,enforcementthereof will require an affirmative act from the State,
such as the appropriation oftheneeded amount to satisfy the judgment. If it does, the suit is one against the
State anditsinclusion as party defendant is necessary. If on the other hand, the officer impleaded may
byhimself alone comply with the decision of the court without the necessity o involvingthe State, thenthe
suit can prosper against him and will not be considered a claim againstthe State. Lastly, when apublic
officer acts without or in excess of jurisdiction, any injurycaused by him is his own personalliability and
cannot be imputed to the State.
 What are the instances when a suit against the State is proper?Three instances are considered suit against
the state. These are:(A)
When the Republic is sued by name.
To sue the State, its express consent should be ask and bemanifested through a general law or a special
law, while the implied consent is given when the Statecommences litigation or the state entering into a
contract. The general law that provides for theconsent of the State to be sued is Act No. 3083
(the Government of the Philippine Isl
ands herebyconsents and submits to be sued upon any moneyed claim involving liability arising from
contract,express or implied, which could
serve as a basis of civil action between private parties.).
(B)
When an Unincorporated government agency is sued
. If suit is filed against one of thegovernment entities, it must be ascertained whether or not the State, as
the principal that mayultimately be held liable, has given its consent to be sued. This ascertainment will
depend in the firstinstance on whether the government agency impleadedis incorporated or
unincorporated. An incorporated agency has a charter of its own that invests itwith a separate juridical
personality, like the Social Security System, the University of the Philippinesand the City of Manila. On
the other hand, the unincorporated agency has no separate juridicalpersonality but is merged in the
general machinery of the government, like the Department ofJustice, the Bureau of Mines and the
Government Printing Office.If the agency is incorporated, thetest of its suability is found in its
charter.The simple rule is that it is suable if its charter says so, and this is true regardless of the functions
itis performing. Municipal corporations like provinces and cities, are agencies of the State when theyare
engaged in governmental functions and therefore should enjoy the sovereign immunity fromsuits. They
are subject to suit even in the performance of such functions because their charterprovides that they can
sue and be sued. Unincorporated agency, as there would be no charter andno separate juridical personality
to consult, any suit filed against it is necessarily an action againstthe Philippine Government of which itis
part of. This being so, it is necessary to determine the natureof the functions in which the agency is
engaged, so as to hold it suable if they are proprietary andnot suable if theyare governmental. The test in
every case is the nature of the primary functionsbeing discharged. The non-suability of the State is
available to the agency even if it is shown that itis engaged not only in governmental functions but also,
as a sideline, or incidentally in proprietaryenterprises.
(C) When a public officer is sued in the performance of his official acts and the ultimateliablity rest upon
the State
. In such cases, it is important to determine if the State is real party in interest, suchas the claim if proved
will be a direct liability of the State and not merely of the officerimpleaded.Three denominators are
common among these three considerations. First is that it mustrequire the government to disburse public
funds to satisfy any award in that case or an amount isappropriated, Second, it would mean loss of
government property.May the government validly invoke the doctrine of State immunity from suit if its
invocation will serveas an instrument for perpetrating an injustice on a citizen?Although the doctrine of
State immunity is sometimes called
the royal prerogative of dishonesty, it
must be observed in fairness that the State does not often avail itself of this rule to take undueadvantage
of parties that may have legitimate claims against it. The principle fortunately has a built-in qualification:
the state may, if it so desires, divest itself of its sovereign immunity and therebyvoluntarily open itself to
suit. In fine,the state may be sued if it gives its consent

129 SCRA 495

Republic of the Philippines

SUPREME COURT
Manila
 FIRST DIVISION

G.R. No. L-81147 June 20, 1989

VICTORIA BRINGAS PEREIRA, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and RITA PEREIRA NAGAC, respondents.

Benjamin J. Quitoriano for petitioner.

Linzag-Arcilla & Associates Law Offices for private respondent.

GANCAYCO, J.:

Is a judicial administration proceeding necessary when the decedent dies intestate without leaving
any debts? May the probate court appoint the surviving sister of the deceased as the administratrix
of the estate of the deceased instead of the surviving spouse? These are the main questions which
need to be resolved in this case.

Andres de Guzman Pereira, an employee of the Philippine Air Lines, passed away on January 3,
1983 at Bacoor, Cavite without a will. He was survived by his legitimate spouse of ten months, the
herein petitioner Victoria Bringas Pereira, and his sister Rita Pereira Nagac, the herein private
respondent.

On March 1, 1983, private respondent instituted before Branch 19 of the Regional Trial Court of
Bacoor, Cavite, Special Proceeding No. RTC-BSP-83-4 for the issuance of letters of administration
in her favor pertaining to the estate of the deceased Andres de Guzman Pereira. 1 In her verified
petition, private respondent alleged the following: that she and Victoria Bringas Pereira are the only
surviving heirs of the deceased; that the deceased left no will; that there are no creditors of the deceased;
that the deceased left several properties, namely: death benefits from the Philippine Air Lines (PAL), the
PAL Employees Association (PALEA), the PAL Employees Savings and Loan Association, Inc. (PESALA)
and the Social Security System (SSS), as well as savings deposits with the Philippine National Bank
(PNB) and the Philippine Commercial and Industrial Bank (PCIB), and a 300 square meter lot located at
Barangay Pamplona, Las Pinas, Rizal and finally, that the spouse of the deceased (herein petitioner) had
been working in London as an auxiliary nurse and as such one-half of her salary forms part of the estate
of the deceased.

On March 23,1983, petitioner filed her opposition and motion to dismiss the petition of private
respondent 2alleging that there exists no estate of the deceased for purposes of administration and
praying in the alternative, that if an estate does exist, the letters of administration relating to the said
estate be issued in her favor as the surviving spouse.

In its resolution dated March 28, 1985, the Regional Trial Court, appointed private respondent Rita
Pereira Nagac administratrix of the intestate estate of Andres de Guzman Pereira upon a bond
posted by her in the amount of Pl,000.00. The trial court ordered her to take custody of all the real
and personal properties of the deceased and to file an inventory thereof within three months after
receipt of the order. 3
Not satisfied with the resolution of the lower court, petitioner brought the case to the Court of
Appeals. The appellate court affirmed the appointment of private respondent as administratrix in its
decision dated December 15, 1987. 4

Hence, this petition for review on certiorari where petitioner raises the following issues: (1) Whether
or not there exists an estate of the deceased Andres de Guzman Pereira for purposes of
administration; (2) Whether or not a judicial administration proceeding is necessary where there are
no debts left by the decedent; and, (3) Who has the better right to be appointed as administratrix of
the estate of the deceased, the surviving spouse Victoria Bringas Pereira or the surviving sister Rita
Pereira Nagac?

Anent the first issue, petitioner contends that there exists no estate of the deceased for purposes of
administration for the following reasons: firstly, the death benefits from PAL, PALEA, PESALA and
the SSS belong exclusively to her, being the sole beneficiary and in support of this claim she
submitted letter-replies from these institutions showing that she is the exclusive beneficiary of said
death benefits; secondly, the savings deposits in the name of her deceased husband with the PNB
and the PCIB had been used to defray the funeral expenses as supported by several receipts; and,
finally, the only real property of the deceased has been extrajudicially settled between the petitioner
and the private respondent as the only surviving heirs of the deceased.

Private respondent, on the other hand, argues that it is not for petitioner to decide what properties
form part of the estate of the deceased and to appropriate them for herself. She points out that this
function is vested in the court in charge of the intestate proceedings.

Petitioner asks this Court to declare that the properties specified do not belong to the estate of the
deceased on the basis of her bare allegations as aforestated and a handful of documents. Inasmuch
as this Court is not a trier of facts, We cannot order an unqualified and final exclusion or non-
exclusion of the property involved from the estate of the deceased. 5

The resolution of this issue is better left to the probate court before which the administration
proceedings are pending. The trial court is in the best position to receive evidence on the discordant
contentions of the parties as to the assets of the decedent's estate, the valuations thereof and the
rights of the transferees of some of the assets, if any. 6 The function of resolving whether or not a
certain property should be included in the inventory or list of properties to be administered by the
administrator is one clearly within the competence of the probate court. However, the court's
determination is only provisional in character, not conclusive, and is subject to the final decision in a
separate action which may be instituted by the parties. 7

Assuming, however, that there exist assets of the deceased Andres de Guzman Pereira for
purposes of administration, We nonetheless find the administration proceedings instituted by private
respondent to be unnecessary as contended by petitioner for the reasons herein below discussed.

The general rule is that when a person dies leaving property, the same should be judicially
administered and the competent court should appoint a qualified administrator, in the order
established in Section 6, Rule 78, in case the deceased left no will, or in case he had left one, should
he fail to name an executor therein. 8 An exception to this rule is established in Section 1 of Rule
74. 9 Under this exception, when all the heirs are of lawful age and there are no debts due from the
estate, they may agree in writing to partition the property without instituting the judicial administration or
applying for the appointment of an administrator.

Section 1, Rule 74 of the Revised Rules of Court, however, does not preclude the heirs from
instituting administration proceedings, even if the estate has no debts or obligations, if they do not
desire to resort for good reasons to an ordinary action for partition. While Section 1 allows the heirs
to divide the estate among themselves as they may see fit, or to resort to an ordinary action for
partition, the said provision does not compel them to do so if they have good reasons to take a
different course of action. 10 It should be noted that recourse to an administration proceeding even if the
estate has no debts is sanctioned only if the heirs have good reasons for not resorting to an action for
partition. Where partition is possible, either in or out of court, the estate should not be burdened with an
administration proceeding without good and compelling reasons. 11

Thus, it has been repeatedly held that when a person dies without leaving pending obligations to be
paid, his heirs, whether of age or not, are not bound to submit the property to a judicial
administration, which is always long and costly, or to apply for the appointment of an administrator
by the Court. It has been uniformly held that in such case the judicial administration and the
appointment of an administrator are superfluous and unnecessary proceedings . 12

Now, what constitutes "good reason" to warrant a judicial administration of the estate of a deceased
when the heirs are all of legal age and there are no creditors will depend on the circumstances of
each case.

In one case, 13 We said:

Again the petitioner argues that only when the heirs do not have any dispute as to
the bulk of the hereditary estate but only in the manner of partition does section 1,
Rule 74 of the Rules of Court apply and that in this case the parties are at
loggerheads as to the corpus of the hereditary estate because respondents
succeeded in sequestering some assets of the intestate. The argument is
unconvincing, because, as the respondent judge has indicated, questions as to what
property belonged to the deceased (and therefore to the heirs) may properly be
ventilated in the partition proceedings, especially where such property is in the hands
of one heir.

In another case, We held that if the reason for seeking an appointment as administrator is merely to
avoid a multiplicity of suits since the heir seeking such appointment wants to ask for the annulment
of certain transfers of property, that same objective could be achieved in an action for partition and
the trial court is not justified in issuing letters of administration. 14 In still another case, We did not find
so powerful a reason the argument that the appointment of the husband, a usufructuary forced heir of his
deceased wife, as judicial administrator is necessary in order for him to have legal capacity to appear in
the intestate proceedings of his wife's deceased mother, since he may just adduce proof of his being a
forced heir in the intestate proceedings of the latter. 15

We see no reason not to apply this doctrine to the case at bar. There are only two surviving heirs, a
wife of ten months and a sister, both of age. The parties admit that there are no debts of the
deceased to be paid. What is at once apparent is that these two heirs are not in good terms. The
only conceivable reason why private respondent seeks appointment as administratrix is for her to
obtain possession of the alleged properties of the deceased for her own purposes, since these
properties are presently in the hands of petitioner who supposedly disposed of them fraudulently.
We are of the opinion that this is not a compelling reason which will necessitate a judicial
administration of the estate of the deceased. To subject the estate of Andres de Guzman Pereira,
which does not appear to be substantial especially since the only real property left has been
extrajudicially settled, to an administration proceeding for no useful purpose would only
unnecessarily expose it to the risk of being wasted or squandered. In most instances of a similar
nature, 16 the claims of both parties as to the properties left by the deceased may be properly ventilated in
simple partition proceedings where the creditors, should there be any, are protected in any event.
We, therefore, hold that the court below before which the administration proceedings are pending
was not justified in issuing letters of administration, there being no good reason for burdening the
estate of the deceased Andres de Guzman Pereira with the costs and expenses of an administration
proceeding.

With the foregoing ruling, it is unnecessary for us to delve into the issue of who, as between the
surviving spouse Victoria Bringas Pereira and the sister Rita Pereira Nagac, should be preferred to
be appointed as administratrix.

WHEREFORE, the letters of administration issued by the Regional Trial Court of Bacoor to Rita
Pereira Nagac are hereby revoked and the administration proceeding dismissed without prejudice to
the right of private respondent to commence a new action for partition of the property left by Andres
de Guzman Pereira. No costs.

SO ORDERED.

Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.

Footnotes

1 Page 27, Rollo.

2 Page 29, Supra.

3 Page 3, Rollo.

4 Page 33, Supra.

5 Ortega v. Court of Appeals (1987).

6 Sebial v. Sebial, 64 SCRA 385 (1975).

7 Ortega v. Court of Appeals, Supra; Valera v. Inserts, 149 SCRA

553 (1987); Vda. de Rodriguez v. Court of Appeals, 91 SCRA 540 (1979); Cuizon v.
Remolete; 129 SCRA 495 (1984); Lachenal v. Salas, 71 SCRA 262 (1976); Coca v.
Borromeo, 81 SCRA 278 (1978); Garcia v. Garcia, 67 Phil. 353 (1939); Guinguin v.
Abuton, 48 Phil 144 (1925).

8 Utulo v. Pasion vda. de Garcia, 66 Phil. 303 (1938).

9 Section 1. Extra-judicial settlement by agreement between heirs. If the decedent

left no will and no debts and the heirs are all of age, or the minors are represented by
their judicial or legal representatives duly authorized for the purpose, the parties may,
without securing letters of administration, divide the estate among themselves as
they see fit by means of a public instrument filed in the office of the register of deeds,
and should they disagree, they may do so in an ordinary action of partition. ..." 10
 10 Rodriguez, et al. v. Tan, etc. and Rodriguez, 92 Phil. 273 (1952).

11 Intestate Estate of Mercado v. Magtibay, 96 Phil, 383 (1953) citing Monserrat v.

lbanez, G.R No. L-3369, May 24,1950.

12 Utulo v. Pasion de Garcia, supra; Fule v. Fule, 46 Phil. 317 (1924); Baldemor v.
Malangyaon, 34 Phil. 367 (1916); Bondad v. Bondad, 34 Phil. 232 (1916); Malafasan
v. Ignacio; 19 Phil. 434 (1911); Ilustre v. Alaras Frondora; 17 Phil. 321 (1910). In
Orozco vs. Garcia, 50 Phil 149, it was held that there is nothing in Section 1, Rule 74
which prohibits the heirs from instituting special proceeding for the administration of
the intestate estate, if they cannot agree in the extrajudicial partition and
apportionment of the same. Utulo v. Pasion Vda. de Garcia, Supra reaffirmed the
doctrine laid down in the cases previous to Orozco.

13 Monserrat v. Ibanez, Supra cited in Intestate Estate of Mercado v. Magtibay,

Supra.

14 Intestate Estate of Mercado v. Magtibay, supra.

15 Utulo v. Pasion vda. de Garcia, supra.

16 Intestate Estate of Mercado v. Magtibay, supra.

71 SCRA 503

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 149017 November 28, 2008

VALENTE RAYMUNDO,petitioner,
vs.
TEOFISTA ISAGON VDA. DE SUAREZ, DANILO I. SUAREZ, EUFROCINA
SUAREZ, MARCELO I. SUAREZ, JR, EVELYN SUAREZ, ET
AL., respondents.

DECISION

NACHURA, J.:

This petition, filed under Rule 65 of the Rules of Court, assails the Court of
Appeals (CA) Decision1and Resolution2 in CA-G.R. SP No. 58090 which
reversed, set aside and recalled the Regional Trial Court (RTC) Orders3 in
Civil Case No. 51203.

First, the long settled facts.

Marcelo and Teofista Isagon Suarez'4 marriage was blessed with both
material wealth and progeny in herein respondents, namely,
Danilo,5 Eufrocina, Marcelo Jr., Evelyn, and Reggineo,6 all surnamed Suarez.
During their marriage, governed by the conjugal partnership of gains regime,
they acquired numerous properties, which included the following: (1) a parcel
of land situated in Barrio Caniogan, Pasig with an area of 348 square meters
covered by Transfer Certificate of Title (TCT) No. 30680; (2) property located
in Pinagbuhatan, Pasig, with an area of 1,020 square meters under Tax
Declaration No. A-016-01003; and (3) Lot Nos. 5, 6 & 7, Block 2 covered by
Tax Declaration No. A-01700723 (subject properties).

After the death of Marcelo Sr. in 1955, Teofista and herein respondents, as
well as Elpidio Suarez,7executed an Extrajudicial Settlement of
Estate,8 partitioning Marcelo Sr.'s estate, thus:

WHEREAS, the said deceased is survived by the parties hereto who are
his only legal heirs: TEOFISTA ISAGON, being the surviving spouse,
and EUFROCINA S. ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ,
EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO
SUAREZ, being the legitimate children of the deceased with the said
TEOFISTA ISAGON;

WHEREAS, the minors ELPIDIO, SUAREZ, DANILO SUAREZ,

EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO
SUAREZ are represented herein by EUFROCINA S. ANDRES, in her
capacity as the guardian and legal administrator of the property of the
said minors;

WHEREAS, there are no known debts or financial obligations of

whatever nature and amount against the estate of the deceased;

NOW, THEREFORE, in consideration of the foregoing premises, the

Parties have agreed to settle and liquidate the assets of the conjugal
partnership between the deceased and TEOFISTA ISAGON, and to
settle and adjudicate the estate of the said deceased, by and pursuance
to these presents, in the following manner, to wit:
1. That TEOFISTA ISAGON, as the surviving spouse and partner of the
deceased, shall receive in absolute and exclusive ownership the
following properties as her lawful share in the assets of the conjugal
partnership of gains between her and the deceased, to wit:

(a) Half (1/2) interest and participation in the parcel of land

covered by Tax Declaration No. 6938, situated at Sitio Pantayan,
Municipality of Taytay, Province of Rizal;

(b) Half (1/2) interest and participation in the parcel of land

covered by Tax Declaration No. 6939, situated at Sitio Pantayan,
Municipality of Taytay, Province of Rizal;

(c) Half (1/2) interest and participation in the parcel of land

covered by TCT No. 38291, situated at Barrio Rosario,
Municipality of Pasig, Province of Rizal;

(d) Half (1/2) interest and participation in the parcel of land

covered by TCT No. 38290, situated at Barrio Rosario,
Municipality of Pasig, Province of Rizal;

(e) TWELVE THOUSAND FIVE HUNDRED THIRTY PESOS AND

NINETY (P12,530.90) deposited with the Commercial Bank and
Trust Company of the Philippines, and THIRTY-NINE PESOS
(P39.00) deposited with Prudential Bank.

2. That the Parties TEOFISTA ISAGON, EUFROCINA S. ANDRES,

ELPIDIO SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO
SUAREZ, JR. and REGGINEO SUAREZ, shall each and all receive and
be entitled to a share equivalent to one-seventh (1/7) of the estate of the
deceased MARCELO SUAREZ, which estate is comprised of the
following properties, to wit:

(a) A parcel of land covered by TCT No. 30680, situated at Barrio

Kaniogan, Municipality of Pasig, Province of Rizal, with an
assessed value of P4,150.00.

(b) Three (3) parcels of land covered by TCT Nos. 33982, 33983
and 33984, situated at Barrio Pineda, Municipality of Pasig,
Province of Rizal, with an assessed value ofP560.00.
 (c) A parcel of land covered by TCT 33986, situated at Barrio
Pineda, Municipality of Pasig, Province of Rizal, with an assessed
value of P440.00.

(d) Two (2) parcels of land, being Lots Nos. 42 and 44 of the
amendment-subdivision plan TY-4653-Amd., being a portion of
Lot 2 described on the original plan II-4653, G.L.R.O. Record No.
_____, situated at Barrio Santolan, Municipality of Pasig, Province
of Rizal, with a total assessed value of P590.00.

(e) Two parcels of land, being Lots Nos. 43 and 45 of the

amendment-subdivision plan TY-4653-Amd., being a portion of
Lot 2 described on the original plan II-4653, G.L.R.O. Record No.
_______, situated at Barrio Santolan, Municipality of Pasig,
Province of Rizal, with a total assessed value of P1,190.00.

(f) A parcel of land, being Lot No. 6, Block 269 of the subdivision
plan pos-112, being a portion of Lot 2, Block 348, Psd-3188,
G.L.R.O. Record Nos. 375,699 and 917, situated at San Felipe
Neri, Province of Rizal, with an assessed value of P6,340.00.

(g) A parcel of land covered by OCT No. 391, situated in the

Municipality of Taytay, Province of Rizal, with an assessed value
of P1,840.00.

(h) TWELVE THOUSAND (12,000) shares of stock of the

Consolidated Mines, Inc. represented by Certificate No. 71-5-B
(for 1,000 shares) and Certificate No. 12736 (for 11,000 shares).

PROVIDED, that their title to the properties hereinabove mentioned

shall be in common and the share of each heir being pro indiviso.

Curiously, despite the partition, title to the foregoing properties, explicitly

identified in the Extrajudicial Settlement of Estate as forming part of Marcelo's
and Isagon's property regime, remained in the couple's name. Not
surprisingly, Teofista continued to administer and manage these properties.
On the whole, apart from those now owned exclusively by Teofista, all the
properties were held pro indiviso by Teofista and her children; and respective
titles thereto were not changed, with Teofista asde facto administrator thereof.

In 1975, Rizal Realty Corporation (Rizal Realty) and Teofista, the latter
owning ninety percent (90%) of the former's shares of stock, were sued by
petitioner Valente Raymundo, his wife Violeta, Virginia Banta and Maria
Concepcion Vito (plaintiffs) in consolidated cases for Rescission of Contract
and Damages, docketed as Civil Case Nos. 21736 to 21739. Thereafter, in
1975, the then Court of First Instance (CFI) of Rizal, Branch 1, rendered
judgment: (1) rescinding the respective contracts of plaintiffs with Rizal Realty
and Teofista, and (2) holding the two defendants solidarily liable to plaintiffs
for damages in the aggregate principal amount of about P70,000.00.9

When the judgment of the CFI became final and executory, herein subject
properties were levied and sold on execution on June 24, 1983 to satisfy the
judgment against Teofista and Rizal Realty. The aforementioned plaintiffs
were the highest bidder, and bought the levied properties for the amount
ofP94,170.00. As a result, a certificate of sale was issued to them and
registered in their favor on August 1, 1983. On July 31, 1984, the Provincial
Sheriff of Rizal issued a final deed of sale over the subject properties.

Parenthetically, before expiration of the redemption period, or on June 21,

1984, herein respondents filed a revindicatory action against petitioner
Valente, Violeta, Virginia and Maria Concepcion, docketed as Civil Case No.
51203, for the annulment of the auction sale and recovery of ownership of the
levied properties. Essentially, respondents alleged in their complaint that they
cannot be held liable for the judgment rendered against their mother, Teofista,
not having been impleaded therein; and consequently, the subject properties,
which they own pro indiviso with their mother, can neither be levied nor be
sold on execution.

Meanwhile, the RTC, Branch 151, formerly the CFI, Branch 1, in Civil Case
Nos. 21376 to 21379, issued an Order10 directing Teofista: (1) to vacate the
subject properties, (2) to desist from despoiling, dismantling, removing or
alienating the improvements thereon, (3) to place petitioner Valente, Violeta,
Virginia and Maria Concepcion in peaceful possession thereof, and (4) to
surrender to them the owner's duplicate copy of the torrens title and other
pertinent documents. Herein respondents, joined by their mother, Teofista,
filed a Motion for Reconsideration arguing that the subject properties are co-
owned by them and further informing the RTC of the filing and pendency of
Civil Case No. 51203. Nonetheless, the trial court denied Teofista's and herein
respondents' motion, reiterated its previous order, which included, among
others, the order for Teofista and all persons claiming right under her, to
vacate the lots subject of the judicial sale.
Undaunted, Teofista and herein respondents filed a petition
for certiorari before the CA to annul the foregoing orders. The appellate court,
on July 6, 1987, dismissed Teofista's and herein respondents' petition, thus:

We believe this petition cannot prosper for two reasons. First, as

purported case for certiorari it fails to show how the respondent judge
had acted without or in excess of jurisdiction or with grave abuse of
discretion. The two orders being assailed were preceded by a final
judgment, a corresponding writ of execution, a levy on execution and a
judicial sale, all of which enjoy a strong sense presumption of regularity.

Secondly, as far as [petitioner] Teofista Suarez is concerned, she

cannot complain about the levy because she was a party in the
consolidated cases where judgment was rendered against her in her
personal capacity. Since she did not appeal from the decision, she
cannot say that the judgment is erroneous for an obligation that belong
to the corporation. And with respect to the children of Teofista Suarez,
who are co-petitioners in this proceedings [herein respondents], suffice
it to point out that not being parties in the consolidated cases, what they
should have done was to immediately file a third party claim. The
moment levy was made on the parcels of land, which they claim are
theirs by virtue of hereditary succession, they should have seasonably
filed such claim to protect their rights. As the record discloses, however,
the children chose to remain silent, and even allowed the auction sale to
be held, filing almost a year later a half-hearted complaint to annul the
proceedings which they allowed to be dismissed by not diligently
prosecuting it.

In Santos v. Mojica (10 SCRA 318), a partition case with third- party
claimants, the Supreme Court came out with the following ruling: "The
procedure (a petition for certiorari) followed by him (a petitioner not
party to the original partition case) in vindicating his right is not the one
sanctioned by law, for he should have filed a separate and independent
action making parties therein the sheriff and the plaintiffs responsible for
the execution xxx. It can, therefore, be said that (he) acted improperly in
filing the present petition because his remedy was to file a separate and
independent action to vindicate his ownership over the land.

WHEREFORE, the petition is denied and the restraining order

previously issued is DISSOLVED, with costs against petitioners.11
On the other litigation front concerning Civil Case No. 51203, a writ of
preliminary injunction was issued by the RTC Pasig, Branch 155, on February
25, 1985, enjoining petitioner Valente, Violeta, Virginia and Maria Concepcion
from transferring to third parties the levied properties based on its preliminary
finding that the auctioned properties are co-owned by Teofista and herein
respondents. Subsequently, however, Civil Case No. 51203 was dismissed by
the RTC, Branch 155, at the instance of petitioner Valente for failure of herein
respondents to prosecute. But in yet another turn of events, the RTC, Branch
155, lifted its previous order of dismissal and directed the issuance of alias
summons.

Thus, it was now petitioner Valente's, Violeta's, Virginia's and Maria

Concepcion's turn to file a petition for certiorari with the CA, assailing the
various orders of the RTC, Branch 155, which all rejected their bid to dismiss
Civil Case No. 51203. The CA granted their petition, thus:

And the fact that herein private respondents, as the legal heirs of
Teofista Vda. de Suarez and supposedly not parties in Civil Case Nos.
21376 - 21379 does not preclude the application of the doctrine of res
judicata since, apart from the requisites constitutive of this procedural
tenet, they were admittedly the children of Teofista Suarez, who is the
real party-in-interest in the previous final judgment. As successors-in-
interest of Teofista Suarez, private respondents merely stepped into the
shoes of their mother in regard to the levied pieces of property. Verily,
there is identity of parties, not only where the parties in both actions are
the same, but where there is privity with them as in the cases of
successors-in-interest by title subsequent to the commencement of the
action or where there is substantial identity.

Finally, the action to annul the judicial sale filed by herein private
respondents is not the reinvindicatory suit, much less the third party
claim contemplated by Section 17 of Rule 39.

WHEREFORE, the petition for certiorari is hereby granted and the

questioned orders dated February 25, 1985, May 19, 1989 and
February 26, 1990 issued in Civil Case No. 51203 are hereby annulled;
further respondent judge is ordered to dismiss Civil Case No. 51203.12

From this ruling, herein respondents appealed to the Supreme Court. In

Suarez v. Court of Appeals,13we reversed the appellate court, thus:
Even without touching on the incidents and issues raised by both
petitioner [herein respondents] and private respondents [petitioner
Valente, Violeta, Virginia and Maria Concepcion] and the developments
subsequent to the filing of the complaint, [w]e cannot but notice the
glaring error committed by the trial court.

It would be useless to discuss the procedural issue on the validity of the

execution and the manner of publicly selling en masse the subject
properties for auction. To start with, only one-half of the 5 parcels of
land [subject properties] should have been the subject of the auction
sale.

The law in point is Article 777 of the Civil Code, the law applicable at the
time of the institution of the case:

The rights to the succession are transmitted from the moment of the
death of the decedent."

Article 888 further provides:

"The legitime of the legitimate children and descendants consists

of one-half of the hereditary estate of the father and of the mother.

The latter may freely dispose of the remaining half, subject to the rights
of illegitimate children and of the surviving spouse as hereinafter
provided."

Article 892, par. 2 likewise provides:

"If there are two or more legitimate children or descendants, the

surviving spouse shall be entitled to a portion equal to the legitime
of each of the legitimate children or descendants."

Thus, from the foregoing, the legitime of the surviving spouse is equal to
the legitime of each child.

The proprietary interest of petitioners [herein respondents] in the levied

and auctioned property is different from and adverse to that of their
mother [Teofista]. Petitioners [herein respondents] became co-owners
of the property not because of their mother [Teofista] but through their
own right as children of their deceased father [Marcelo Sr.]. Therefore,
petitioners [herein respondents] are not barred in any way from
 instituting the action to annul the auction sale to protect their own
interest.

WHEREFORE, the decision of the Court of Appeals dated July 27, 1990
as well as its Resolution of August 28, 1990 are hereby REVERSED
and set aside; and Civil Case No. 51203 is reinstated only to determine
that portion which belongs to petitioners and to annul the sale with
regard to said portion.

It was at this point when another series of events transpired, culminating in

the present petition.

Upon our reinstatement of Civil Case No. 51203, each and every pleading
filed by herein respondents, as plaintiffs therein, was hotly contested and
opposed by therein defendants, including petitioner Valente. Moreover, even
at that stage, when the case had been remanded with a directive to
"determine that portion which belongs to [herein respondents] and to annul the
sale with regard to said portion," Civil Case No. 51203 had to be re-raffled and
transferred, for varied reasons, to the different court branches in Pasig City. In
between all these, petitioner Valente, along with the other defendants,
repeatedly filed a Motion to Dismiss Civil Case No. 51203 for the purported
failure of herein respondents to prosecute the case. Most of these Motions to
Dismiss were denied.

With each transfer of Civil Case No. 51203, the judge to which the case was
raffled had to study the records anew. Expectedly, part of the records went
missing and were lost. On April 12, 1993, the Clerk of Court of RTC, Branch
71, to which Civil Case No. 51203 was remanded, filed a report on the records
of the case, to wit:

1. The first volume of the record in the above-entitled case was

recorded as received on June 20, 1990, by Sheriff Alejandro O.
Loquinario;

2. That the staff of Branch 71 at this time was sharing a small room with
Branch 161 at the First Floor of the Justice Hall, and as the Branch was
newly formed, it had no equipment or furniture of its own, and was still
undermanned;

3. That sometime in August 1990, Branch 71 moved to the staffroom of

Branch 159 at the Second Floor of the Justice Hall;
4. That on October 25, 1990, this Court received a Notice of Judgment
dated October 22, 1990 from the Court of Appeals that ruled the
dismissal of the above-entitled case, and as per standing instructions of
Judge Graduacion A. Reyes-Claravall, the same was bound as volume
2 of the case;

5. That just before the Christmas vacation in 1991, the branch was
forced to hastily move all of its records and equipment to branch 69,
because of the unexpected notice we received that the room we were
occupying was to be demolished in order to meet the schedule for the
renovation of the building;

6. That unfortunately, the room was demolished before the undersigned

could make a last check to see if everything was transferred;

7. That it was only later on that this office discovered that important
documents were indeed lost, including transcripts of stenographic notes
in a case that was submitted for decision;

8. That sometime in May 1992, the branch moved its Office to its
present location;

9. That on March 8, 1993, this Court received a copy of a Decision of

the Supreme Court reversing the earlier ruling of the Court of Appeals;

10. That it was at this time that the first volume of this case, which was
bundled along with other cases which were decided and/or archived,
was reported as missing;

11. That from the time the same was found to be missing, Judge
Claravall ordered that a search for the same be made in all of the offices
wherein this branch was forced to share a room with, as well as the
Court of Appeals, in the event that the same was transmitted to said
Court;

12. That all the efforts were in vain, as said record could not be located
anywhere;

13. That the undersigned now concludes that the first volume of the
above-entitled case was probably lost during the renovation of the
Justice Hall Building, and will have to be reconstituted with the use of
 documents in the possession of the parties, or documents entered as
exhibits in other Courts.14

In this regard, herein respondents filed a Motion for Reconstitution of

Records15 of the case. Initially, petitioner Valente, and the other defendants --
Violeta, Virginia and Maria Concepcion -- opposed the motion.16 However, the
trial court eventually granted the motion for reconstitution, and ordered
petitioner Valente and the other defendants to submit a copy of their Answer
filed thereat and copies of other pleadings pertinent to the case.17

Thereafter, three (3) incidents, among numerous others, set off by the parties'
pleadings, are worth mentioning, to wit:

1. A Motion for Leave to File and Admit Supplemental Complaint18 filed by

herein respondents. The Supplemental Complaint additionally prayed that the
levy and sale at public auction of the subject properties be annulled and set
aside, as the bid price was unconscionable and grossly inadequate to the
current value of the subject properties. The Supplemental Complaint further
sought a re-bidding with respect to Teofista's share in the subject properties.
Finally, it prayed that TCT No. 6509 in the name of petitioner Valente, Violeta,
Virginia and Maria Concepcion be cancelled and TCT No. 30680 in the name
of Marcelo Suarez, married to Teofista Isagon, be reinstated.

2. A Manifestation and Motion (to Execute/Enforce Decision dated September

4, 1992 of the Supreme Court)19 filed by herein respondents pointing out that
the Supreme Court itself had noted the current increased value of the subject
properties and that petitioner Valente, Violeta, Virginia and Maria Concepcion
unjustly enriched themselves in appropriating the subject properties worth
millions then, for a measly bid price of P94,170.00, for a judgment obligation
worth only P70,000.00.

3. An Urgent Motion [to direct compliance by plaintiffs (herein respondents)

with Supreme Court Decision or to consider the matter submitted without
evidence on the part of plaintiffs]20 filed by therein defendants, including
herein petitioner Valente, pointing out that plaintiffs (herein respondents) have
yet to comply with the RTC, Branch 67 Order commanding them to submit (to
the RTC) any evidence showing settlement of the estate of the deceased
Marcelo Suarez, in order for the court to determine the portion in the estate
which belongs to Teofista. The Urgent Motion stated in paragraph 2, thus:

2. The defendants [including herein petitioner Valente] did everything

possible to expedite the disposition of this case while the plaintiffs
 [herein respondents] did everything possible to DELAY the disposition
of the same obviously because the plaintiffs [herein respondents] are in
full possession and enjoyment of the property in dispute. In its decision
of September 4, 1992, the SUPREME COURT nullified TWO final and
executory DECISIONS of the Court of Appeals in an unprecedented
action. In said decision, the Supreme Court ordered the plaintiffs [herein
respondents] to establish with evidence their personality as heirs of
Marcelo Suarez, and after being able to do so, to adduce evidence that
would determine what portion belongs to plaintiffs hence the above
matters need be litigated upon before the RTC can "annul the sale with
regard to said portion" (belonging to the plaintiffs alleged heirs).

On these incidents, the records reveal the following Orders issued by the
different branches of the RTC:

1. Order dated March 17, 1995, issued by Presiding Judge Rodrigo B.

Lorenzo of Branch 266, Pasig City, admitting herein respondents'
Supplemental Complaint.21

2. Order dated January 22, 1996, issued by Judge Apolinario B. Santos

resolving: (a) herein respondents' Manifestation and Motion (to
execute/enforce Decision dated September 4, 1992 of the Supreme Court),
and (b) therein defendants' (including herein petitioner Valente's) Request for
Answer to Written Interrogatories.22 The RTC, Branch 67, resolved the
incidents, thus:

From the foregoing uncontroverted facts, this Court is convinced beyond

a shadow of doubt that the Decision of the Supreme Court of
September 4, 1992, being the final arbiter in any judicial dispute, should
be implemented for the following reasons:

xxxx

On the request for Answers to Written Interrogatories filed by the

defendants, it is obvious that at this stage of the proceedings where the
Supreme Court had already pronounced the undisputed facts, which
binds this court, the answer sought to be elicited through written
interrogatories, therefore, are entirely irrelevant, aside from having been
filed way out of time.
 WHEREFORE, premises considered, this court, implements the
decision of the Supreme Court dated September 4, 1992 which
mandates that:

"xxx and Civil Case No. 51203 is reinstated only to determine that
portion which belongs to petitioner and to annul the sale with
regard to said portion."

In order to enforce such mandate of the Supreme Court, this court

orders that:

a. The auction sale of the five (5) parcels of land and all prior and
subsequent proceedings in relation thereto are declared null and
void.

b. Transfer Certificate of Title No. 6509 in the name of defendant

Valente Raymundo is also declared null and void, and the
Register of Deeds of Rizal, Pasig City, is ordered to issue a new
one in the name of the deceased Marcelo Suarez or to reinstate
Transfer Certificate of Title No. 30680 in the name of Marcelo
Suarez.

c. Teofista Suarez is ordered to reimburse the amount

of P94,170.00, plus legal interest from the date of issuance of this
order, and failing which, the portion of the estate of Marcelo
Suarez belonging to the surviving spouse, Teofista Suarez, may
be levied on execution.

d. [Herein respondents], including Teofista Suarez, are hereby

ordered to submit to this court any evidence showing settlement
of the estate of the deceased, Marcelo Suarez, in order for this
court to determine the portion in the estate which belongs to
Teofista Suarez.

Therein defendants, including petitioner Valente, filed a Motion for

Reconsideration which the trial court denied on May 29, 1996.

3. Order dated September 10, 1996, issued by Judge Santos denying the
appeal interposed by petitioner Valente from the January 22, 1996 and May
29, 1996 Orders, ruling that these are interlocutory orders, and, therefore, not
appealable.23
4. Order dated April 8, 1999, issued by Pairing Judge Santiago Estrella which
declared, thus:

Considering that counsel for the plaintiffs does not have the birth certificates
of the heirs of the plaintiff to prove their affiliation with the deceased which is
one of the matters written in the decision of the higher court which must be
complied with, and in order for counsel for the plaintiffs [herein respondents]
to have the opportunity to complete all documentary evidence and in view of
abbreviating the proceedings and as prayed for, today's scheduled pre-trial is
re-set for the last time to May 19, 1999 at 8:30 a.m.

In this connection, counsel for plaintiffs [herein respondents] is advised

to secure all the documentary evidence she needs material to this case
which will expedite the disposition of this case.24

This last Order and therein defendants' Urgent Motion spawned another
contentious issue between the parties. In this connection, Judge Estrella
issued an Order25 requiring the parties to file their respective position papers
due to the "divergent views on the nature of the hearing that should be
conducted in compliance with" our decision in Suarez. Both parties duly filed
their position papers, with herein respondents attaching thereto a copy of the
Extrajudicial Settlement of Estate executed by the heirs of Marcelo Suarez in
1957.

In resolving this latest crossfire between the parties, the RTC, Branch 67,
issued an Order dated January 11, 2000, which reads, in part:

This Court is of the view that the Honorable Supreme Court is not a trier
of facts, precisely it directed that the records of this case be remanded
to the Regional Trial Court for further proceedings.

xxxx

It is a matter of record that there was no trial on the merits completed in

the Regional Trial Court. xxx The Supreme Court reversed the judgment
of the Court of Appeals and ordered the reinstatement of Civil Case No.
51203. Naturally, there was no trial on the merits before this Court that
allowed the parties to adduce evidence to establish their respective
claims in the plaintiffs' [herein respondents] complaint and in the
defendants' [including petitioner Valente] counter-claim, respectively. It
is in this context that the Honorable Supreme Court reinstated the
 "action [of herein respondents] to annul the auction sale to protect their
[herein respondents] own interest.

While this Court is of the view that trial on the merits is necessary for the
purpose of giving the plaintiffs [herein respondents] a chance to adduce
evidence to sustain their complaint and the defendants [including
petitioner Valente] to prove their defense, consistent with the directive of
the Honorable Supreme Court (in its Decision promulgated on
September 4, 1992), the Court is, however, confronted with the very
recent decision of the Honorable Supreme Court in "Heirs of Guido
Yaptinchay, et al. vs. Del Rosario, et al., G.R. No. 124320, March 2,
1999" where it held that -

The declaration of heirship must be made in an administration

proceeding, and not in an independent civil action. This doctrine
was reiterated in Solve vs. Court of Appeals (182 SCRA 119,
128). The trial court cannot make a declaration of heirship in the
civil action for the reason that such a declaration can only be
made in a special proceeding. Under Section 3, Rule 1 of the
1997 Revised Rules of Court, a civil action is defined as "one by
which a party sues another for the enforcement or protection of a
right, or the prevention or redress of a wrong" while a special
proceeding is "a remedy by which a party seeks to establish a
status, a right, or a particular fact." It is then decisively clear that
the declaration of heirship can be made only in a special
proceeding inasmuch as the petitioners here are seeking the
establishment of a status or right.

In as much as the leading case on the matter is that of "Heirs of

Yaptinchay v. Del Rosario, G.R. No. 124320, March 2, 1999" it is left
with no choice but to obey said latter doctrine.

WHEREFORE, the foregoing premises considered, this Court holds that

in the light of the doctrine laid down in the case of "Heirs of Yaptinchay
vs. Del Rosario, G.R. No. 124320, March 2, 1999" this case is
dismissed without prejudice to the plaintiffs' [herein respondents'] filing a
special proceeding consistent with said latest ruling.26

Herein respondents moved for reconsideration thereof which, however, was

denied by the RTC, Branch 67 on March 14, 2000.27
Consequently, herein respondents filed a petition for certiorari before the CA
alleging grave abuse of discretion in the trial court's order dismissing Civil
Case No. 51203 without prejudice. All the defendants in the trial court were
impleaded as private respondents in the petition. Yet, curiously, only petitioner
Valente filed a Comment thereto. The appellate court granted the petition,
recalled and set aside RTC, Branch 67's Orders dated January 11, 2000 and
March 14, 2000, and reinstated Judge Santos' Orders dated May 29, 1996
and September 6, 1996. It disposed of the petition, thus:

We agree with [herein respondents].

On September 4, 1992, the Supreme Court (G.R. No. 94918) reversed

the decision of the Court of Appeals and mandates that Civil Case No.
51203 be reinstated in order to determine the portion in the estate which
belongs to Teofista Suarez. The sale of the parcels of land was
declared null and void. Necessarily, the title (TCT No. 5809) in the name
of respondents was also declared null and void. xxx

xxxx

Hon. Apolinario Santos of Br. 67, Regional Trial Court, Pasig City, on
January 22, 1996 and on motion of [herein respondents], issued an
order to execute/enforce the decision of the Supreme Court xxx.

xxxx

[Petitioner Valente, Violeta, Virginia and Maria Concepcion] filed a

notice of appeal on the order of Judge Santos. The appeal, on motion of
[herein respondents] was denied on September 10, 1996. Obviously,
the decision of the Supreme Court had become final and executory.
Likewise, both orders of Judge Santos dated May 29, 1996 denying the
motion for reconsideration and the denial of the notice of appeal dated
September 6, 1996 had also become final and executory.

The denial of petitioner Valente's Motion for Reconsideration prompted the

filing of this present petition for certiorari.

Petitioner Valente posits that the appellate court committed grave abuse of
discretion in recalling and setting aside the Orders of Judge Estrella and
reinstating those of Judge Santos because:
 1. The CA ruled that the Orders dated May 29, 1996 and September 6,
1996 issued by Judge Santos were final and executory, and yet the
latter did not allow an appeal to be taken therefrom ratiocinating that the
questioned orders were interlocutory, and therefore, not appealable;
and

2. The CA ignored and violated the Supreme Court's ruling in Heirs of

Yaptinchay v. Del Rosario28 which held that a declaration of heirship
must be made in a special proceeding and not in a civil action.

We find the petition bereft of merit.

At the outset, we note that petitioner Valente incorrectly filed a petition

for certiorari to appeal the CA decision. Petitioner should have filed a petition
for review on certiorari under Rule 45 of the Rules of Court. Simply imputing in
a petition that the decision sought to be reviewed is tainted with grave abuse
of discretion does not magically transform a petition into a special civil action
for certiorari. The CA decision disposed of the merits of a special civil action,
an original petition, filed thereat by herein respondents. That disposition is a
final and executory order, appealable to, and may be questioned before, this
Court by persons aggrieved thereby, such as petitioner Valente, via Rule 45.

On this score alone, the petition should have been dismissed outright.
However, we have disregarded this procedural flaw and now resolve this case
based on the merits or lack thereof.

Petitioner asseverates that the assailed CA ruling "is unfair and it amounts to
a trickery to prevent an appeal against a final order by claiming that the
appealed order is merely interlocutory and later maintain that the same order
has become final after declaring it to be interlocutory."

We reject petitioner's paltry contention. Petitioner apparently does not

comprehend the distinction between an interlocutory order which is final and
executory, and a final order which disposes of the controversy or case; much
less, understand the available remedies therefrom.

We have defined an interlocutory order as referring to something between the

commencement and the end of the suit which decides some point or matter
but it is not the final decision on the whole controversy.29 It does not terminate
or finally dismiss or finally dispose of the case, but leaves something to be
done by the court before the case is finally decided on the merits.30 Upon the
other hand, a final order is one which leaves to the court nothing more to do to
resolve the case.31

On more than one occasion, we laid down the test to ascertain whether an
order is interlocutory or final i.e., "Does it leave something to be done in the
trial court with respect to the merits of the case?" If it does, it is interlocutory; if
it does not, it is final. The key test to what is interlocutory is when there is
something more to be done on the merits of the case.32 The Orders dated
May 29, 1996 and September 6, 1996 issued by Judge Santos are
interlocutory, and therefore, not appealable, as they leave something more to
be done on the merits of the case. In fact, in paragraph (d) of Judge Santos'
Order dated May 29, 1996, herein respondents were directed to submit
evidence showing settlement of the estate of the deceased Marcelo Sr.

Contrary to petitioner Valente's stance, there is no trickery or chicanery in the

CA's distinction between an interlocutory and a final order. Indeed, as ruled by
the CA, the RTC Order denying petitioner Valente's Notice of Appeal attained
finality when he failed to file a petition for certiorariunder Rule 65 of the Rules
of Court.

We cannot overemphasize the rule that the correct identification of the nature
of an assailed order determines the remedies available to an aggrieved party.
The old Rules of Court in Section 2, Rule 41 reads, thus:

SEC. 2. Judgments or orders subject to appeal.-Only final judgments or

orders shall be subject to appeal. No interlocutory or incidental
judgment or order shall stay the progress of an action, nor shall it be the
subject of appeal until final judgment or order is rendered for one party
or the other.

xxxx

With the advent of the 1997 Rules of Civil Procedure, Section 1, Rule 41 now
provides for the appropriate remedy to be taken from an interlocutory order,
thus:

SECTION 1. Subject of appeal. - An appeal may be taken from a

judgment or final order that completely disposes of the case, or of a
particular matter therein when declared by these Rules to be
appealable.

No appeal may be taken from:

 xxx

(c) An interlocutory order;

xxx

In all the above instances where the judgment or final order is not
appealable, the aggrieved party may file an appropriate special civil
action under Rule 65.

Clearly, the denial of therein defendants' (including petitioner Valente's)

appeal from the Orders dated May 29, 1996 and September 6, 1996 was in
order. Thus, the CA decision affirming the RTC's denial was correct.

Further, on this crucial distinction as applied to this case, petitioner Valente

filed a petition forcertiorari from the CA decision in CA-G.R. SP No. 58090,
which is not an interlocutory order. It is a final order which completely
disposed of the merits of the case with nothing more left to be done therein.
The correct and available remedy available to petitioner Valente was, as
previously discussed, a petition for review on certiorari under Rule 45 of the
Rules of Court.

In fine, petitioner Valente erroneously sought relief through reversed

remedies. He tried to appeal the interlocutory orders of the RTC which are
unappealable. Thus, the RTC properly denied his Notice of Appeal, and the
CA correctly upheld the RTC. He should have filed a petition for certiorari;
under Rule 65. On the other hand, from the final order of the CA, he comes
before this Court on a petition for certiorari under Rule 65, when the proper
remedy is an appeal by certiorari under Rule 45.

In the recent case of Jan-Dec Construction Corporation v. Court of

Appeals33 we ruled in this wise:

As a rule, the remedy from a judgment or final order of the CA is appeal

via petition for review under Rule 45 of the Rules.

Under Rule 45, decisions, final orders or resolutions of the CA in any

case, i.e., regardless of the nature of the action or proceedings involved,
may be appealed to the Court by filing a petition for review, which would
be but a continuation of the appellate process over the original case. It
seeks to correct errors of judgment committed by the court, tribunal, or
officer. In contrast, a special civil action for certiorari under Rule 65 is an
 independent action based on the specific grounds therein provided and
proper only if there is no appeal or any plain, speedy and adequate
remedy in the ordinary course of law. It is an extraordinary process for
the correction of errors of jurisdiction and cannot be availed of as a
substitute for the lost remedy of an ordinary appeal.

Independently of this procedural infirmity, even on the merits of the case, the
petition does not fare otherwise. It must be dismissed for lack of merit.

Petitioner Valente insists that, following our ruling in Heirs of Yaptinchay v. Del
Rosario,34 herein respondents must first be declared heirs of Marcelo Sr.
before they can file an action to annul the judicial sale of what is,
undisputedly, conjugal property of Teofista and Marcelo Sr.

We disagree. Our ruling in Heirs of Yaptinchay is not applicable.

Herein respondents' status as legitimate children of Marcelo Sr. and Teofista

and thus, Marcelo Sr.'s heirs has been firmly established, and confirmed
by this Court in Suarez v. Court of Appeals.35 True, this Court is not a trier of
facts,36 but as the final arbiter of disputes,37 we found and so ruled that herein
respondents are children, and heirs of their deceased father, Marcelo Sr. This
having been settled, it should no longer have been a litigated issue when we
ordered a remand to the lower court. In short, petitioner Valente's, Violeta's,
Virginia's, and Maria Concepcion's representation in the RTC that our ruling in
Suarez required herein respondents to present evidence of their affiliation with
the deceased, Marcelo Sr., is wrong.

As was set forth in the dispositive portion of Suarez, "Civil Case No. 51203 is
reinstated only to determine that portion which belongs to [herein
respondents] and to annul the sale with regard to said portion." There is
clearly no intimation in our decision for the RTC to have to determine an
already settled issue i.e., herein respondents' status as heirs of Marcelo Sr.

Moreover, petitioner Valente cannot assail, directly or indirectly, the status of

herein respondents as legitimate children of Marcelo Sr. and Teofista, and
likewise demand that herein respondents first prove their filiation to Marcelo
Sr. The following records bear out Marcelo, Sr.'s and Teofista's paternity of
herein respondents, and the latter's status as legitimate children:

1. The CA decision in CA-G.R. SP Nos. 10646 to 10649 where Teofista, along

with herein respondents, questioned the RTC, Branch 151's Orders dated
October 10, 1984 and October 14, 1986. Although the CA ruled against
Teofista and herein respondents, it explicitly recognized the latter's status as
legitimate children of Teofista and Marcelo Sr.; and38

2. The CA decision in CA-G.R. SP No. 20320 which incorrectly ruled that

herein respondents were, as children of Teofista, merely successors-in-
interest of the latter to the property and by virtue thereof, bound by the
judgment in Civil Case Nos. 21376 to 21379 consistent with the doctrine of res
judicata.39 We subsequently reversed this ruling on the wrong application
of res judicata in the conclusive case of Suarez. We retained and affirmed,
however, the CA's factual finding of herein respondents' status as heirs of
Marcelo Sr. We categorically held therein that "the proprietary interest of
[herein respondents] in the levied and auctioned [properties] is different from
and adverse to that of [Teofista]. [Herein respondents] became co-owners of
the property not because of [Teofista] but through their own right as children
of their deceased father [, Marcelo Sr.]."

Clearly, herein respondents' long possessed status of legitimate children of

Marcelo Sr. and Teofista cannot be indirectly or directly attacked by petitioner
Valente in an action to annul a judicial sale.

Articles 262,40 263,41 265 and 26642 of the Civil Code, the applicable law at
the time of Marcelo's death, support the foregoing conclusion, to wit:

Art. 262. The heirs of the husband may impugn the legitimacy of the
child only in the following cases:

(1) If the husband should die before the expiration of the period
fixed for bringing his action;

(2) If the husband should die after the filing of the complaint,
without having desisted from the same;

(3) If the child was born after the death of the husband.

Art. 263. The action to impugn the legitimacy of the child shall be
brought within one year from the recording of birth in the Civil Register,
if the husband should be in the same place, or in a proper case, any of
his heirs.

If he or his heirs are absent, the period shall be eighteen months if they
should reside in the Philippines; and two years if abroad. If the birth of
 the child has been concealed, the term shall be counted from the
discovery of the fraud.

Art. 265. The filiation of legitimate children is proved by the record of

birth appearing in the Civil Register, or by an authentic document or a
final judgment.

Art. 266. In the absence of the titles indicated in the preceding article,
the filiation shall be proved by the continuous possession of status of a
legitimate child.

In Heirs of Yaptinchay, the complaint for annulment and/or declaration of

nullity of certain TCT's was dismissed for failure of the petitioners to
demonstrate "any proof or even a semblance of it" that they had been
declared the legal heirs of the deceased couple, the spouses Yaptinchay. In
stark contrast, the records of this case reveal a document, an Extrajudicial
Settlement of Marcelo Sr.'s estate, which explicitly recognizes herein
respondents as Marcelo Sr.'s legitimate children and heirs. The same
document settles and partitions the estate of Marcelo Sr. specifying Teofista's
paraphernal properties, and separates the properties she owns in common
with her children, herein respondents. Plainly, there is no need to re-declare
herein respondents as heirs of Marcelo Sr., and prolong this case
interminably.

Petitioner Valente, along with Violeta, Virginia and Maria Concepcion, became
owners of the subject properties only by virtue of an execution sale to recover
Teofista's judgment obligation. This judgment obligation is solely Teofista's,
and payment therefor cannot be made through an execution sale of properties
not absolutely owned by her. These properties were evidently conjugal
properties and were, in fact, even titled in the name of Marcelo, Sr. married to
Teofista. Thus, upon Marcelo Sr.'s death, by virtue of compulsory succession,
Marcelo Sr.'s share in the conjugal partnership was transmitted by operation
of law to his compulsory heirs.

Compulsory succession is a distinct kind of succession, albeit not categorized

as such in Article 77843of the Civil Code. It reserves a portion of the net estate
of the decedent in favor of certain heirs, or group of heirs, or combination of
heirs, prevailing over all kinds of succession.44 The portion that is so reserved
is the legitime. Article 886 of the Civil Code defines legitime as "that part of the
testator's property which he cannot dispose of because the law has reserved it
for certain heirs who are, therefore, called compulsory heirs." Herein
respondents are primary compulsory heirs,45 excluding secondary compulsory
heirs,46 and preferred over concurring compulsory heirs in the distribution of
the decedent's estate.47

Even without delving into the Extrajudicial Settlement of Marcelo Sr.'s estate
in 1957, it must be stressed that herein respondents' rights to the succession
vested from the moment of their father's death.48 Herein respondents'
ownership of the subject properties is no longer inchoate; it became absolute
upon Marcelo's death, although their respective shares therein remained pro
indiviso. Ineluctably, at the time the subject properties were sold on execution
sale to answer for Teofista's judgment obligation, the inclusion of herein
respondents' share therein was null and void.

In fine, Teofista's ownership over the subject properties is not absolute.

Significantly, petitioner Valente does not even attempt to dispute the conjugal
nature of the subject properties. Since Teofista owns only a portion of the
subject properties, only that portion could have been, and was actually, levied
upon and sold on auction by the provincial sheriff of Rizal. Thus, a separate
declaration of heirship by herein respondents is not necessary to annul the
judicial sale of their share in the subject properties.

We note the recent case of Portugal v. Portugal-Beltran,49 where we

scrutinized our rulings in Heirs of Yaptinchay and the cited cases of Litam v.
Rivera50 and Solivio v. Court of Appeals,51 and Guilas v. CFI Judge of
Pampanga52 cited in Solivio. We ruled thus:

The common doctrine in Litam, Solivio and Guilas in which the adverse
parties are putative heirs to the estate of a decedent or parties to the
special proceedings for its settlement is that if the special proceedings
are pending, or if there are no special proceedings filed but there is,
under the circumstances of the case, a need to file one, then the
determination of, among other issues, heirship should be raised and
settled in said special proceedings. Where special proceedings had
been instituted but had been finally closed and terminated, however, or
if a putative heirs has lost the right to have himself declared in the
special proceedings as co-heir and he can no longer ask for its re-
opening, then an ordinary civil action can be filed for his declaration as
heir in order to bring about the annulment of the partition or distribution
or adjudication of a property or properties belonging to the estate of the
deceased.

In the case at bar, respondent, believing rightly or wrongly that she was
the sole heir to Portugal's estate, executed on February 15, 1988 the
 questioned Affidavit of Adjudication under the second sentence of Rule
74, Section of the Revised Rules of Court. Said rule is an exception to
the general rule that when a person dies leaving property, it should be
judicially administered and the competent court should appoint a
qualified administrator, in the order established in Sec. 6, Rule 78 in
case the deceased left no will, or in case he did, he failed to name an
executor therein.

xxx

It appearing, however, that in the present case the only property of the
intestate estate of Portugal is the Caloocan parcel of land, to still subject
it, under the circumstances of the case, to a special proceeding which
could be long, hence, not expeditious, just to establish the status of
petitioners as heirs is not only impractical; it is burdensome to the estate
with the costs and expenses of an administration proceedings. And it is
superfluous in light of the fact that the parties to the civil case-subject of
the present case, could and had already in fact presented evidence
before the trial court which assumed jurisdiction over the case upon the
issues it defined during pre-trial.

In fine, under the circumstances of the present case, there being

no compelling reason to still subject Portugal's estate to
administration proceedings since a determination of petitioners'
status as heirs could be achieved in the civil case filed by
petitioners xxx.53

All told, under the circumstances, in addition to the already settled status of
herein respondents as heirs of Marcelo Sr., there is no need to dismiss Civil
Case No. 51203 and require herein respondents to institute a separate special
proceeding for a declaration of their heirship.

WHEREFORE, premises considered, the petition is DENIED. The Decision of

the Court of Appeals in CA-G.R. SP No. 58090 is AFFIRMED. The Orders
dated May 29, 1996 and September 6, 1996 issued by Judge Santos
are REINSTATED. Costs against the petitioner.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice
WE CONCUR:

*
REYNATO S. PUNO
Chief Justice

CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice
Chairperson

MINITA V. CHICO-NAZARIO
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

Footnotes
 *
Additional member in lieu of Associate Justice Ruben T. Reyes, per
raffle dated November 19, 2007.
1
Penned by Associate Justice Mariono M. Umali, with Associate
Justices Ruben T. Reyes (now Associate Justice of the Supreme Court)
and Rebecca de Guia-Salvador concurring, rollo, pp. 38-44.
2
Penned by Associate Justice Rebecca de Guia-Salvador, with
Associate Justices Remedios Salazar-Fernando and Bienvenido L.
Reyes concurring, id. at 47-48.
3
Dated January 11, and March 14, 2000, penned by pairing Judge
Santiago Estrella, id. at 49-55.
4
Teofista Isagon Suarez is named as a respondent in the title of this
case. However, in the list of parties contained in the petition, Teofista is
not included as a respondent. Neither was she a party in CA-G.R. SP
No. 58090.
5
Herein respondents filed a Notice of Death and Substitution of
Deceased Party plaintiff Danilo Suarez, Records, pp. 267-269.
6
Elpidio, another offspring of Marcelo and Teofista and brother of
herein respondents, is not impleaded as a respondent in this petition.
His name does not appear as a plaintiff, petitioner, respondent or
defendant, in the exchange of pleadings between the
48 SCRA 254

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 125865 March 26, 2001

JEFFREY LIANG (HUEFENG), petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

RESOLUTION

YNARES-SANTIAGO, J.:
This resolves petitioner's Motion for Reconsideration of our Decision dated January 28, 2000,
denying the petition for review.

The Motion is anchored on the following arguments:

1) THE DFA'S DETERMINATION OF IMMUNITY IS A POLITICAL QUESTION TO BE

MADE BY THE EXECUTIVE BRANCH OF THE GOVERNMENT AND IS CONCLUSIVE
UPON THE COURTS.

2) THE IMMUNITY OF INTERNATIONAL ORGANIZATIONS IS ABSOLUTE.

3) THE IMMUNITY EXTENDS TO ALL STAFF OF THE ASIAN DEVELOPMENT BANK

(ADB).

4) DUE PROCESS WAS FULLY AFFORDED THE COMPLAINANT TO REBUT THE DFA
PROTOCOL.

5) THE DECISION OF JANUARY 28, 2000 ERRONEOUSLY MADE A FINDING OF FACT

ON THE MERITS, NAMELY, THE SLANDERING OF A PERSON WHICH PREJUDGED
PETITIONER'S CASE BEFORE THE METROPOLITAN TRIAL COURT (MTC)-
MANDALUYONG.

6) THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS IS NOT APPLICABLE TO

THIS CASE.

This case has its origin in two criminal Informations1 for grave oral defamation filed against petitioner,
a Chinese national who was employed as an Economist by the Asian Development Bank (ADB),
alleging that on separate occasions on January 28 and January 31, 1994, petitioner allegedly uttered
defamatory words to Joyce V. Cabal, a member of the clerical staff of ADB. On April 13, 1994, the
Metropolitan Trial Court of Mandaluyong City, acting pursuant to an advice from the Department of
Foreign Affairs that petitioner enjoyed immunity from legal processes, dismissed the criminal
Informations against him. On a petition for certiorari and mandamus filed by the People, the
Regional Trial Court of Pasig City, Branch 160, annulled and set aside the order of the Metropolitan
Trial Court dismissing the criminal cases.2

Petitioner, thus, brought a petition for review with this Court. On January 28, 2000, we rendered the
assailed Decision denying the petition for review. We ruled, in essence, that the immunity granted to
officers and staff of the ADB is not absolute; it is limited to acts performed in an official capacity.
Furthermore, we held that the immunity cannot cover the commission of a crime such as slander or
oral defamation in the name of official duty.

On October 18, 2000, the oral arguments of the parties were heard. This Court also granted the
Motion for Intervention of the Department of Foreign Affairs. Thereafter, the parties were directed to
submit their respective memorandum.

For the most part, petitioner's Motion for Reconsideration deals with the diplomatic immunity of the
ADB, its officials and staff, from legal and judicial processes in the Philippines, as well as the
constitutional and political bases thereof. It should be made clear that nowhere in the assailed
Decision is diplomatic immunity denied, even remotely. The issue in this case, rather, boils down to
whether or not the statements allegedly made by petitioner were uttered while in the performance of
his official functions, in order for this case to fall squarely under the provisions of Section 45 (a) of
the "Agreement Between the Asian Development Bank and the Government of the Republic of the
Philippines Regarding the Headquarters of the Asian Development Bank," to wit:

Officers and staff of the Bank, including for the purpose of this Article experts and
consultants performing missions for the Bank, shall enjoy the following privileges and
immunities:

(a) Immunity from legal process with respect to acts performed by them in their
official capacity except when the Bank waives the immunity.

After a careful deliberation of the arguments raised in petitioner's and intervenor's Motions for
Reconsideration, we find no cogent reason to disturb our Decision of January 28, 2000. As we have
stated therein, the slander of a person, by any stretch, cannot be considered as falling within the
purview of the immunity granted to ADB officers and personnel. Petitioner argues that the Decision
had the effect of prejudging the criminal case for oral defamation against him. We wish to stress that
it did not. What we merely stated therein is that slander, in general, cannot be considered as an act
performed in an official capacity. The issue of whether or not petitioner's utterances constituted oral
defamation is still for the trial court to determine.

WHEREFORE, in view of the foregoing, the Motions for Reconsideration filed by petitioner and
intervenor Department of Foreign Affairs are DENIED with FINALITY.

SO ORDERED.

Kapunan and Pardo, JJ ., concur.

Davide, Jr., C.J., I also join concurring opinion of Mr. Justice Puno.
Puno, J., Please see concurring opinion.

Concurring Opinions

PUNO, J., concurring:

For resolution is the Motion for Reconsideration filed by petitioner Jeffrey Liang of this Court's
decision dated January 28, 2000 which denied the petition for review. We there held that: the
protocol communication of the Department of Foreign Affairs to the effect that petitioner Liang is
covered by immunity is only preliminary and has no binding effect in courts; the immunity provided
for under Section 45(a) of the Headquarters Agreement is subject to the condition that the act be
done in an "official capacity"; that slandering a person cannot be said to have been done in an
"official capacity" and, hence, it is not covered by the immunity agreement; under the Vienna
Convention on Diplomatic Relations, a diplomatic agent, assuming petitioner is such, enjoys
immunity from criminal jurisdiction of the receiving state except in the case of an action relating to
any professional or commercial activity exercised by the diplomatic agent in the receiving state
outside his official functions; the commission of a crime is not part of official duty; and that a
preliminary investigation is not a matter of right in cases cognizable by the Metropolitan Trial Court.

Petitioner's motion for reconsideration is anchored on the following arguments:

 1. The DFA's determination of immunity is a political question to be made by the executive
branch of the government and is conclusive upon the courts;

2. The immunity of international organizations is absolute;

3. The immunity extends to all staff of the Asian Development Bank (ADB);

4. Due process was fully accorded the complainant to rebut the DFA protocol;

5. The decision of January 28, 2000 erroneously made a finding of fact on the merits,
namely, the slandering of a person which prejudged petitioner's case before the Metropolitan
Trial Court (MTC) Mandaluyong; and

6. The Vienna Convention on diplomatic relations is not applicable to this case.

Petitioner contends that a determination of a person's diplomatic immunity by the Department of

Foreign Affairs is a political question. It is solely within the prerogative of the executive department
and is conclusive upon the courts. In support of his submission, petitioner cites the following
cases: WHO vs. Aquino;1 International Catholic Migration Commission vs. Calleja;2 The Holy See vs.
Rosario, Jr.;3 Lasco vs. United Nations;4 and DFA vs. NLRC.5

It is further contended that the immunity conferred under the ADB Charter and the Headquarters
Agreement is absolute. It is designed to safeguard the autonomy and independence of international
organizations against interference from any authority external to the organizations. It is necessary to
allow such organizations to discharge their entrusted functions effectively. The only exception to this
immunity is when there is an implied or express waiver or when the immunity is expressly limited by
statute. The exception allegedly has no application to the case at bar.

Petitioner likewise urges that the international organization's immunity from local jurisdiction
empowers the ADB alone to determine what constitutes "official acts" and the same cannot be
subject to different interpretations by the member states. It asserts that the Headquarters Agreement
provides for remedies to check abuses against the exercise of the immunity. Thus, Section 49 states
that the "Bank shall waive the immunity accorded to any person if, in its opinion, such immunity
would impede the course of justice and the waiver would not prejudice the purposes for which the
immunities are accorded." Section 51 allows for consultation between the government and the Bank
should the government consider that an abuse has occurred. The same section provides the
mechanism for a dispute settlement regarding, among others, issues of interpretation or application
of the agreement.

Petitioner's argument that a determination by the Department of Foreign Affairs that he is entitled to
diplomatic immunity is a political question binding on the courts, is anchored on the ruling enunciated
in the case of WHO, et al. vs. Aquino, et al.,6 viz:

"It is a recognized principle of international law and under our system of separation of
powers that diplomatic immunity is essentially a political question and courts should refuse to
look beyond a determination by the executive branch of the government, and where the plea
of diplomatic immunity is recognized and affirmed by the executive branch of the government
as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon
appropriate suggestion by the principal law officer of the government, the Solicitor General in
this case, or other officer acting under his direction. Hence, in adherence to the settled
principle that courts may not so exercise their jurisdiction by seizure and detention of
property, as to embarrass the executive arm of the government in conducting foreign
 relations, it is accepted doctrine that in such cases the judicial department of the government
follows the action of the political branch and will not embarrass the latter by assuming an
antagonistic jurisdiction."

This ruling was reiterated in the subsequent cases of International Catholic Migration Commission
vs. Calleja;7The Holy See vs. Rosario, Jr.;8 Lasco vs. UN;9 and DFA vs. NLRC.10

The case of WHO vs. Aquino involved the search and seizure of personal effects of petitioner
Leonce Verstuyft, an official of the WHO. Verstuyft was certified to be entitled to diplomatic immunity
pursuant to the Host Agreement executed between the Philippines and the WHO.

ICMC vs. Calleja concerned a petition for certification election filed against ICMC and IRRI. As
international organizations, ICMC and IRRI were declared to possess diplomatic immunity. It was
held that they are not subject to local jurisdictions. It was ruled that the exercise of jurisdiction by the
Department of Labor over the case would defeat the very purpose of immunity, which is to shield the
affairs of international organizations from political pressure or control by the host country and to
ensure the unhampered performance of their functions.

Holy See v. Rosario, Jr. involved an action for annulment of sale of land against the Holy See, as
represented by the Papal Nuncio. The Court upheld the petitioner's defense of sovereign immunity. It
ruled that where a diplomatic envoy is granted immunity from the civil and administrative jurisdiction
of the receiving state over any real action relating to private immovable property situated in the
territory of the receiving state, which the envoy holds on behalf of the sending state for the purposes
of the mission, with all the more reason should immunity be recognized as regards the sovereign
itself, which in that case is the Holy See.

In Lasco vs. United Nations, the United Nations Revolving Fund for Natural Resources Exploration
was sued before the NLRC for illegal dismissal. The Court again upheld the doctrine of diplomatic
immunity invoked by the Fund.

Finally, DFA v. NLRC involved an illegal dismissal case filed against the Asian Development Bank.
Pursuant to its Charter and the Headquarters Agreement, the diplomatic immunity of the Asian
Development Bank was recognized by the Court.

It bears to stress that all of these cases pertain to the diplomatic immunity enjoyed by international
organizations. Petitioner asserts that he is entitled to the same diplomatic immunity and he cannot
be prosecuted for acts allegedly done in the exercise of his official functions.

The term "international organizations"

"is generally used to describe an organization set up by agreement between two or more
states. Under contemporary international law, such organizations are endowed with some
degree of international legal personality such that they are capable of exercising specific
rights, duties and powers. They are organized mainly as a means for conducting general
international business in which the member states have an interest."11

International public officials have been defined as:

". . . persons who, on the basis of an international treaty constituting a particular international
community, are appointed by this international community, or by an organ of it, and are
 under its control to exercise, in a continuous way, functions in the interest of this particular
international community, and who are subject to a particular personal status."12

"Specialized agencies" are international organizations having functions in particular fields,

such as posts, telecommunications, railways, canals, rivers, sea transport, civil aviation,
meteorology, atomic energy, finance, trade, education and culture, health and refugees.13

Issues

1. Whether petitioner Liang, as an official of an international organization, is entitled to

diplomatic immunity;

2. Whether an international official is immune from criminal jurisdiction for all acts, whether
private or official;

3. Whether the authority to determine if an act is official or private is lodged in the courts;

4. Whether the certification by the Department of Foreign Affairs that petitioner is covered by
immunity is a political question that is binding and conclusive on the courts.

Discussion

A perusal of the immunities provisions in various international conventions and agreements will show
that the nature and degree of immunities vary depending on who the recipient is. Thus:

1. Charter of the United Nations

"Article 105 (1): The Organization shall enjoy in the territory of each of its Members such
privileges and immunities as are necessary for the fulfillment of its purposes.

Article 105 (2): Representatives of the Members of the United Nations and officials of the
Organization shall similarly enjoy such privileges and immunities as are necessary for the
independent exercise of their functions in connection with the Organization."

2. Convention on the Privileges and Immunities of the United Nations

"Section 2: The United Nations, its property and assets wherever located and by
whomsoever held, shall enjoy immunity from every form of legal process except insofar as in
any particular case it has expressly waived its immunity. It is, however, understood that no
waiver of immunity shall extend to any measure of execution.

xxx xxx xxx

Section 11 (a): Representatives of Members to the principal and subsidiary organs of the
United Nations . . shall . . . enjoy . . . immunity from personal arrest or detention and from
seizure of their personal baggage, and, in respect of words spoken or written and all acts
done by them in their capacity as representatives, immunity from legal process of every kind.
xxx xxx xxx

Section 14: Privileges and immunities are accorded to the representatives of Members not
for the personal benefit of the individuals themselves, but in order to safeguard the
independent exercise of their functions in connection with the United Nations. Consequently,
a Member not only has the right but is under a duty to waive the immunity of its
representative in any case where in the opinion of the Member the immunity would impede
the course of justice, and it can be waived without prejudice to the purpose for which the
immunity is accorded.

xxx xxx xxx

Section 18 (a): Officials of the United Nations shall be immune from legal process in respect
of words spoken or written and all acts performed by them in their official capacity.

xxx xxx xxx

Section 19: In addition to the immunities and privileges specified in Section 18, the
Secretary-General and all Assistant Secretaries-General shall be accorded in respect of
themselves, their spouses and minor children, the privileges and immunities, exemptions and
facilities accorded to diplomatic envoys, in accordance with international law.

Section 20: Privileges and immunities are granted to officials in the interest of the United
Nations and not for the personal benefit of the individuals themselves. The Secretary-
General shall have the right and the duty to waive the immunity of any official in any case
where, in his opinion, the immunity would impede the course of justice and can be waived
without prejudice to the interests of the United Nations.

xxx xxx xxx

Section 22: Experts . . . performing missions for the United Nations . . . shall be accorded: (a)
immunity from personal arrest or detention and from seizure of their personal baggage; (b) in
respect of words spoken or written and acts done by them in the course of the performance
of their mission, immunity from legal process of every kind."

3. Vienna Convention on Diplomatic Relations

"Article 29: The person of a diplomatic agent shall be inviolable. He shall not be liable to any
form of arrest or detention. The receiving State shall treat him with due respect and shall
take all appropriate steps to prevent any attack on his person, freedom, or dignity.

xxx xxx xxx

Article 31 (1): A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the
receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction,
except in certain cases.

xxx xxx xxx

Article 38 (1): Except in so far as additional privileges and immunities may be granted by the
receiving State, a diplomatic agent who is a national of or permanently a resident in that
State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts
performed in the exercise of his functions."

4. Vienna Convention on Consular Relations

"Article 41 (1): Consular officials shall not be liable to arrest or detention pending trial, except
in the case of a grave crime and pursuant to a decision by the competent judicial authority.

xxx xxx xxx

Article 43 (1): Consular officers and consular employees shall not be amenable to the
jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts
performed in the exercise of consular functions.

Article 43 (2): The provisions of paragraph 1 of this Article shall not, however, apply in
respect of a civil action either: (a) arising out of a contract concluded by a consular officer or
a consular employee in which he did not contract expressly or impliedly as an agent of the
sending State; or (b) by a third party for damage arising from an accident in the receiving
State caused by a vehicle, vessel or aircraft."

5. Convention on the Privileges and Immunities of the Specialized Agencies

"Section 4: The specialized agencies, their property and assets, wherever located and by
whomsoever held, shall enjoy immunity from every form of legal process except in so far as
in any particular case they have expressly waived their immunity. It is, however, understood
that no waiver of immunity shall extend to any measure of execution.

Section 13 (a): Representatives of members at meetings convened by a specialized agency

shall, while exercising their functions and during their journeys to and from the place of
meeting, enjoy immunity from personal arrest or detention and from seizure of their personal
baggage, and in respect of words spoken or written and all acts done by them in their official
capacity, immunity from legal process of every kind.

xxx xxx xxx

Section 19 (a): Officials of the specialized agencies shall be immune from legal process in
respect of words spoken or written and all acts performed by them in their official capacity.

xxx xxx xxx

Section 21: In addition to the immunities and privileges specified in sections 19 and 20, the
executive head of each specialized agency, including a any official acting on his behalf
during his absence from duty, shall be accorded in respect of himself, his spouse and minor
children, the privileges and immunities, exemptions and facilities accorded to diplomatic
envoys, in accordance with international law."

6. Charter of the ADB

"Article 50 (1): The Bank shall enjoy immunity from every form of legal process, except in
cases arising out of or in connection with the exercise of its powers to borrow money, to
guarantee obligations, or to buy and sell or underwrite the sale of securities, in which cases
 actions may be brought against the Bank in a court of competent jurisdiction in the territory of
a country in which the Bank has its principal or a branch office, or has appointed an agent for
the purpose of accepting service or notice of process, or has issued or guaranteed
securities.

xxx xxx xxx

Article 55 (i): All Governors, Directors, alternates, officers and employees of the Bank,
including experts performing missions for the Bank shall be immune from legal process with
respect to acts performed by them in their official capacity, except when the Bank waives the
immunity."

7. ADB Headquarters Agreement

"Section 5: The Bank shall enjoy immunity from every form of legal process, except in cases
arising out of or in connection with the exercise of its powers to borrow money, to guarantee
obligations, or to buy and sell or underwrite the sale of securities, in which cases actions may
be brought against the Bank in a court of competent jurisdiction in the Republic of the
Philippines.

xxx xxx xxx

Section 44: Governors, other representatives of Members, Directors, the President, Vice-
President and executive officers as may be agreed upon between the Government and the
Bank shall enjoy, during their stay in the Republic of the Philippines in connection with their
official duties with the Bank: (a) immunity from personal arrest or detention and from seizure
of their personal baggage; (b) immunity from legal process of every kind in respect of words
spoken or written and all acts done by them in their official capacity; and (c) in respect of
other matters not covered in (a) and (b) above, such other immunities, exemptions, privileges
and facilities as are enjoyed by members of diplomatic missions of comparable rank, subject
to corresponding conditions and obligations.

Section 45 (a): Officers and staff of the Bank, including for the purposes of this Article
experts and consultants performing missions for the Bank, shall enjoy . . . immunity from
legal process with respect to acts performed by them in their official capacity, except when
the Bank waives the immunity."

II

There are three major differences between diplomatic and international immunities. Firstly, one of
the recognized limitations of diplomatic immunity is that members of the diplomatic staff of a mission
may be appointed from among the nationals of the receiving State only with the express consent of
that State; apart from inviolability and immunity from jurisdiction in respect of official acts performed
in the exercise of their functions, nationals enjoy only such privileges and immunities as may be
granted by the receiving State. International immunities may be specially important in relation to the
State of which the official is a national. Secondly, the immunity of a diplomatic agent from the
jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State; in
the case of international immunities there is no sending State and an equivalent for the jurisdiction of
the Sending State therefore has to be found either in waiver of immunity or in some international
disciplinary or judicial procedure. Thirdly, the effective sanctions which secure respect for diplomatic
immunity are the principle of reciprocity and the danger of retaliation by the aggrieved State;
international immunities enjoy no similar protection.14
The generally accepted principles which are now regarded as the foundation of international
immunities are contained in the ILO Memorandum, which reduced them in three basic propositions,
namely: (1) that international institutions should have a status which protects them against control or
interference by any one government in the performance of functions for the effective discharge of
which they are responsible to democratically constituted international bodies in which all the nations
concerned are represented; (2) that no country should derive any financial advantage by levying
fiscal charges on common international funds; and (3) that the international organization should, as a
collectivity of States Members, be accorded the facilities for the conduct of its official business
customarily extended to each other by its individual member States. The thinking underlying these
propositions is essentially institutional in character. It is not concerned with the status, dignity or
privileges of individuals, but with the elements of functional independence necessary to free
international institutions from national control and to enable them to discharge their responsibilities
impartially on behalf of all their members.15

III

Positive international law has devised three methods of granting privileges and immunities to the
personnel of international organizations. The first is by simple conventional stipulation, as was the
case in the Hague Conventions of 1899 and 1907. The second is by internal legislation whereby the
government of a state, upon whose territory the international organization is to carry out its functions,
recognizes the international character of the organization and grants, by unilateral measures, certain
privileges and immunities to better assure the successful functioning of the organization and its
personnel. In this situation, treaty obligation for the state in question to grant concessions is lacking.
Such was the case with the Central Commission of the Rhine at Strasbourg and the International
Institute of Agriculture at Rome. The third is a combination of the first two. In this third method, one
finds a conventional obligation to recognize a certain status of an international organization and its
personnel, but the status is described in broad and general terms. The specific definition and
application of those general terms are determined by an accord between the organization itself and
the state wherein it is located. This is the case with the League of Nations, the Permanent Court of
Justice, and the United Nations.16

The Asian Development Bank and its Personnel fall under this third category.

There is a connection between diplomatic privileges and immunities and those extended to
international officials. The connection consists in the granting, by contractual provisions, of the
relatively well-established body of diplomatic privileges and immunities to international functionaries.
This connection is purely historical. Both types of officials find the basis of their special status in the
necessity of retaining functional independence and freedom from interference by the state of
residence. However, the legal relationship between an ambassador and the state to which he is
accredited is entirely different from the relationship between the international official and those states
upon whose territory he might carry out his functions.17

The privileges and immunities of diplomats and those of international officials rest upon different
legal foundations. Whereas those immunities awarded to diplomatic agents are a right of the sending
state based on customary international law, those granted to international officials are based on
treaty or conventional law. Customary international law places no obligation on a state to recognize
a special status of an international official or to grant him jurisdictional immunities. Such an
obligation can only result from specific treaty provisions.18

The special status of the diplomatic envoy is regulated by the principle of reciprocity by which a state
is free to treat the envoy of another state as its envoys are treated by that state. The juridical basis of
the diplomat's position is firmly established in customary international law. The diplomatic envoy is
appointed by the sending State but it has to make certain that the agreement of the receiving State
has been given for the person it proposes to accredit as head of the mission to that State.19

The staff personnel of an international organization the international officials assume a

different position as regards their special status. They are appointed or elected to their position by
the organization itself, or by a competent organ of it; they are responsible to the organization and
their official acts are imputed to it. The juridical basis of their special position is found in conventional
law,20 since there is no established basis of usage or custom in the case of the international official.
Moreover, the relationship between an international organization and a member-state does not admit
of the principle of reciprocity,21 for it is contradictory to the basic principle of equality of states. An
international organization carries out functions in the interest of every member state equally. The
international official does not carry out his functions in the interest of any state, but in serving the
organization he serves, indirectly, each state equally. He cannot be, legally, the object of the
operation of the principle of reciprocity between states under such circumstances. It is contrary to
the principle of equality of states for one state member of an international organization to assert a
capacity to extract special privileges for its nationals from other member states on the basis of a
status awarded by it to an international organization. It is upon this principle of sovereign equality
that international organizations are built.

It follows from this same legal circumstance that a state called upon to admit an official of an
international organization does not have a capacity to declare him persona non grata.

The functions of the diplomat and those of the international official are quite different. Those of the
diplomat are functions in the national interest. The task of the ambassador is to represent his state,
and its specific interest, at the capital of another state. The functions of the international official are
carried out in the international interest. He does not represent a state or the interest of any specific
state. He does not usually "represent" the organization in the true sense of that term. His functions
normally are administrative, although they may be judicial or executive, but they are rarely political or
functions of representation, such as those of the diplomat.

There is a difference of degree as well as of kind. The interruption of the activities of a diplomatic
agent is likely to produce serious harm to the purposes for which his immunities were granted. But
the interruption of the activities of the international official does not, usually, cause serious
dislocation of the functions of an international secretariat.22

On the other hand, they are similar in the sense that acts performed in an official capacity by either a
diplomatic envoy or an international official are not attributable to him as an individual but are
imputed to the entity he represents, the state in the case of the diplomat, and the organization in the
case of the international official.23

IV

Looking back over 150 years of privileges and immunities granted to the personnel of international
organizations, it is clear that they were accorded a wide scope of protection in the exercise of their
functions The Rhine Treaty of 1804 between the German Empire and France which provided "all
the rights of neutrality" to persons employed in regulating navigation in the international interest; The
Treaty of Berlin of 1878 which granted the European Commission of the Danube "complete
independence of territorial authorities" in the exercise of its functions; The Covenant of the League
which granted "diplomatic immunities and privileges." Today, the age of the United Nations finds the
scope of protection narrowed. The current tendency is to reduce privileges and immunities of
personnel of international organizations to a minimum. The tendency cannot be considered as a
lowering of the standard but rather as a recognition that the problem on the privileges and
immunities of international officials is new. The solution to the problem presented by the extension of
diplomatic prerogatives to international functionaries lies in the general reduction of the special
position of both types of agents in that the special status of each agent is granted in the interest of
function. The wide grant of diplomatic prerogatives was curtailed because of practical necessity and
because the proper functioning of the organization did not require such extensive immunity for its
officials. While the current direction of the law seems to be to narrow the prerogatives of the
personnel of international organizations, the reverse is true with respect to the prerogatives of the
organizations themselves, considered as legal entities. Historically, states have been more generous
in granting privileges and immunities to organizations than they have to the personnel of these
organizations.24

Thus, Section 2 of the General Convention on the Privileges and Immunities of the United Nations
states that the UN shall enjoy immunity from every form of legal process except insofar as in any
particular case it has expressly waived its immunity. Section 4 of the Convention on the Privileges
and Immunities of the Specialized Agencies likewise provides that the specialized agencies shall
enjoy immunity from every form of legal process subject to the same exception. Finally, Article 50(1)
of the ADB Charter and Section 5 of the Headquarters Agreement similarly provide that the bank
shall enjoy immunity from every form of legal process, except in cases arising out of or in connection
with the exercise of its powers to borrow money, to guarantee obligations, or to buy and sell or
underwrite the sale of securities.

The phrase "immunity from every form of legal process" as used in the UN General Convention has
been interpreted to mean absolute immunity from a state's jurisdiction to adjudicate or enforce its law
by legal process, and it is said that states have not sought to restrict that immunity of the United
Nations by interpretation or amendment. Similar provisions are contained in the Special Agencies
Convention as well as in the ADB Charter and Headquarters Agreement. These organizations were
accorded privileges and immunities in their charters by language similar to that applicable to the
United Nations. It is clear therefore that these organizations were intended to have similar privileges
and immunities.25 From this, it can be easily deduced that international organizations enjoy absolute
immunity similar to the diplomatic prerogatives granted to diplomatic envoys.

Even in the United States this theory seems to be the prevailing rule. The Foreign Sovereign
Immunities Act was passed adopting the "restrictive theory" limiting the immunity of states under
international law essentially to activities of a kind not carried on by private persons. Then the
International Organizations Immunities Act came into effect which gives to designated international
organizations the same immunity from suit and every form of judicial process as is enjoyed by
foreign governments. This gives the impression that the Foreign Sovereign Immunities Act has the
effect of applying the restrictive theory also to international organizations generally. However, aside
from the fact that there was no indication in its legislative history that Congress contemplated that
result, and considering that the Convention on Privileges and Immunities of the United Nations
exempts the United Nations "from every form of legal process," conflict with the United States
obligations under the Convention was sought to be avoided by interpreting the Foreign Sovereign
Immunities Act, and the restrictive theory, as not applying to suits against the United Nations.26

On the other hand, international officials are governed by a different rule. Section 18(a) of the
General Convention on Privileges and Immunities of the United Nations states that officials of the
United Nations shall be immune from legal process in respect of words spoken or written and all acts
performed by them in their official capacity. The Convention on Specialized Agencies carries exactly
the same provision. The Charter of the ADB provides under Article 55(i) that officers and employees
of the bank shall be immune from legal process with respect to acts performed by them in their
official capacity except when the Bank waives immunity. Section 45 (a) of the ADB Headquarters
Agreement accords the same immunity to the officers and staff of the bank. There can be no dispute
that international officials are entitled to immunity only with respect to acts performed in their official
capacity, unlike international organizations which enjoy absolute immunity.

Clearly, the most important immunity to an international official, in the discharge of his international
functions, is immunity from local jurisdiction. There is no argument in doctrine or practice with the
principle that an international official is independent of the jurisdiction of the local authorities for
his official acts. Those acts are not his, but are imputed to the organization, and without waiver the
local courts cannot hold him liable for them. In strict law, it would seem that even the organization
itself could have no right to waive an official's immunity for his official acts. This permits local
authorities to assume jurisdiction over an individual for an act which is not, in the wider sense of the
term, his act at all. It is the organization itself, as a juristic person, which should waive its own
immunity and appear in court, not the individual, except insofar as he appears in the name of the
organization. Provisions for immunity from jurisdiction for official acts appear, aside from the
aforementioned treatises, in the constitution of most modern international organizations. The
acceptance of the principle is sufficiently widespread to be regarded as declaratory of international
law.27

What then is the status of the international official with respect to his private acts?

Section 18 (a) of the General Convention has been interpreted to mean that officials of the specified
categories are denied immunity from local jurisdiction for acts of their private life and empowers local
courts to assume jurisdiction in such cases without the necessity of waiver.28 It has earlier been
mentioned that historically, international officials were granted diplomatic privileges and immunities
and were thus considered immune for both private and official acts. In practice, this wide grant of
diplomatic prerogatives was curtailed because of practical necessity and because the proper
functioning of the organization did not require such extensive immunity for its officials. Thus, the
current status of the law does not maintain that states grant jurisdictional immunity to international
officials for acts of their private lives.29 This much is explicit from the Charter and Headquarters
Agreement of the ADB which contain substantially similar provisions to that of the General
Convention.

VI

Who is competent to determine whether a given act is private or official?

This is an entirely different question. In connection with this question, the current tendency to
narrow the scope of privileges and immunities of international officials and representatives is most
apparent. Prior to the regime of the United Nations, the determination of this question rested with the
organization and its decision was final. By the new formula, the state itself tends to assume this
competence. If the organization is dissatisfied with the decision, under the provisions of the General
Convention of the United States, or the Special Convention for Specialized Agencies, the Swiss
Arrangement, and other current dominant instruments, it may appeal to an international tribunal by
procedures outlined in those instruments. Thus, the state assumes this competence in the first
instance. It means that, if a local court assumes jurisdiction over an act without the necessity of
waiver from the organization, the determination of the nature of the act is made at the national
level.30

It appears that the inclination is to place the competence to determine the nature of an act as private
or official in the courts of the state concerned. That the prevalent notion seems to be to leave to the
local courts determination of whether or not a given act is official or private does not necessarily
mean that such determination is final. If the United Nations questions the decision of the Court, it
may invoke proceedings for settlement of disputes between the organization and the member states
as provided in Section 30 of the General Convention. Thus, the decision as to whether a given act is
official or private is made by the national courts in the first instance, but it may be subjected to
review in the international level if questioned by the United Nations.31

A similar view is taken by Kunz, who writes that the "jurisdiction of local courts without waiver for
acts of private life empowers the local courts to determine whether a certain act is an official act or
an act of private life," on the rationale that since the determination of such question, if left in the
hands of the organization, would consist in the execution, or non-execution, of waiver, and since
waiver is not mentioned in connection with the provision granting immunities to international officials,
then the decision must rest with local courts.32

Under the Third Restatement of the Law, it is suggested that since an international official does not
enjoy personal inviolability from arrest or detention and has immunity only with respect to official
acts, he is subject to judicial or administrative process and must claim his immunity in the
proceedings by showing that the act in question was an official act. Whether an act was performed in
the individual's official capacity is a question for the court in which a proceeding is brought, but if the
international organization disputes the court's finding, the dispute between the organization and the
state of the forum is to be resolved by negotiation, by an agreed mode of settlement or by advisory
opinion of the International Court of Justice.33

Recognizing the difficulty that by reason of the right of a national court to assume jurisdiction over
private acts without a waiver of immunity, the determination of the official or private character of a
particular act may pass from international to national control, Jenks proposes three ways of avoiding
difficulty in the matter. The firstwould be for a municipal court before which a question of the official
or private character of a particular act arose to accept as conclusive in the matter any claim by the
international organization that the act was official in character, such a claim being regarded as
equivalent to a governmental claim that a particular act is an act of State. Such a claim would be in
effect a claim by the organization that the proceedings against the official were a violation of the
jurisdictional immunity of the organization itself which is unqualified and therefore not subject to
delimitation in the discretion of the municipal court. The second would be for a court to accept as
conclusive in the matter a statement by the executive government of the country where the matter
arises certifying the official character of the act. The third would be to have recourse to the
procedure of international arbitration. Jenks opines that it is possible that none of these three
solutions would be applicable in all cases; the first might be readily acceptable only in the clearest
cases and the second is available only if the executive government of the country where the matter
arises concurs in the view of the international organization concerning the official character of the
act. However, he surmises that taken in combination, these various possibilities may afford the
elements of a solution to the problem.34

One final point. The international official's immunity for official acts may be likened to a consular
official's immunity from arrest, detention, and criminal or civil process which is not absolute but
applies only to acts or omissions in the performance of his official functions, in the absence of
special agreement. Since a consular officer is not immune from all legal process, he must respond to
any process and plead and prove immunity on the ground that the act or omission underlying the
process was in the performance of his official functions. The issue has not been authoritatively
determined, but apparently the burden is on the consular officer to prove his status as well as his
exemption in the circumstances. In the United States, the US Department of State generally has left
it to the courts to determine whether a particular act was within a consular officer's official duties.35

Submissions
On the bases of the foregoing disquisitions, I submit the following conclusions:

First, petitioner Liang, a bank official of ADB, is not entitled to diplomatic immunity and hence his
immunity is not absolute.

Under the Vienna Convention on Diplomatic Relations, a diplomatic envoy is immune from criminal
jurisdiction of the receiving State for all acts, whether private or official, and hence he cannot be
arrested, prosecuted and punished for any offense he may commit, unless his diplomatic immunity is
waived.36 On the other hand, officials of international organizations enjoy "functional" immunities, that
is, only those necessary for the exercise of the functions of the organization and the fulfillment of its
purposes.37 This is the reason why the ADB Charter and Headquarters Agreement explicitly grant
immunity from legal process to bank officers and employees only with respect to acts performed by
them in their official capacity, except when the Bank waives immunity. In other words, officials and
employees of the ADB are subject to the jurisdiction of the local courts for their private acts,
notwithstanding the absence of a waiver of immunity.

Petitioner cannot also seek relief under the mantle of "immunity from every form of legal process"
accorded to ADB as an international organization. The immunity of ADB is absolute whereas the
immunity of its officials and employees is restricted only to official acts. This is in consonance with
the current trend in international law which seeks to narrow the scope of protection and reduce the
privileges and immunities granted to personnel of international organizations, while at the same time
aims to increase the prerogatives of international organizations.

Second, considering that bank officials and employees are covered by immunity only for their official
acts, the necessary inference is that the authority of the Department of Affairs, or even of the ADB
for that matter, to certify that they are entitled to immunity is limited only to acts done in their official
capacity. Stated otherwise, it is not within the power of the DFA, as the agency in charge of the
executive department's foreign relations, nor the ADB, as the international organization vested with
the right to waive immunity, to invoke immunity for private acts of bank officials and employees,
since no such prerogative exists in the first place. If the immunity does not exist, there is nothing to
certify.

As an aside, ADB cannot even claim to have the right to waive immunity for private acts of its
officials and employees. The Charter and the Headquarters Agreement are clear that the immunity
can be waived only with respect to official acts because this is only the extent to which the privilege
has been granted. One cannot waive the right to a privilege which has never been granted or
acquired.

Third, I choose to adopt the view that it is the local courts which have jurisdiction to determine
whether or not a given act is official or private. While there is a dearth of cases on the matter under
Philippine jurisprudence, the issue is not entirely novel.

The case of M.H. Wylie, et al. vs. Rarang, et al.38 concerns the extent of immunity from suit of the
officials of a United States Naval Base inside the Philippine territory. Although a motion to dismiss
was filed by the defendants therein invoking their immunity from suit pursuant to the RP-US Military
Bases Agreement, the trial court denied the same and, after trial, rendered a decision declaring that
the defendants are not entitled to immunity because the latter acted beyond the scope of their official
duties. The Court likewise applied the ruling enunciated in the case of Chavez vs.
Sandiganbayan39 to the effect that a mere invocation of the immunity clause does not ipso facto
result in the charges being automatically dropped. While it is true that the Chavez case involved a
public official, the Court did not find any substantial reason why the same rule cannot be made to
apply to a US official assigned at the US Naval Station located in the Philippines. In this case, it was
the local courts which ascertained whether the acts complained of were done in an official or
personal capacity.

In the case of The Holy See vs. Rosario, Jr.,40 a complaint for annulment of contract of sale,
reconveyance, specific performance and damages was filed against petitioner. Petitioner moved to
dismiss on the ground of, among others, lack of jurisdiction based on sovereign immunity from suit,
which was denied by the trial court. A motion for reconsideration, and subsequently, a "Motion for a
Hearing for the Sole Purpose of Establishing Factual Allegation for Claim of Immunity as a
Jurisdictional Defense" were filed by petitioner. The trial court deferred resolution of said motions
until after trial on the merits. On certiorari, the Court there ruled on the issue of petitioner's non-
suability on the basis of the allegations made in the pleadings filed by the parties. This is an implicit
recognition of the court's jurisdiction to ascertain the suability or non-suability of the sovereign by
assessing the facts of the case. The Court hastened to add that when a state or international agency
wishes to plead sovereign or diplomatic immunity in a foreign court, in some cases, the defense of
sovereign immunity was submitted directly to the local courts by the respondents through their
private counsels, or where the foreign states bypass the Foreign Office, the courts can inquire into
the facts and make their own determination as to the nature of the acts and transactions involved.

Finally, it appears from the records of this case that petitioner is a senior economist at ADB and as
such he makes country project profiles which will help the bank in deciding whether to lend money or
support a particular project to a particular country.41 Petitioner stands charged of grave slander for
allegedly uttering defamatory remarks against his secretary, the private complainant herein.
Considering that the immunity accorded to petitioner is limited only to acts performed in his official
capacity, it becomes necessary to make a factual determination of whether or not the defamatory
utterances were made pursuant and in relation to his official functions as a senior economist.

I vote to deny the motion for reconsideration.

Davide, Jr., C.J., concurs.

22 SCRA 525

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 127406 November 27, 2000

OFELIA P. TY, petitioner,

vs.
THE COURT OF APPEALS, and EDGARDO M. REYES, respondents.

DECISION

QUISUMBING, J.:

This appeal seeks the reversal of the decision dated July 24, 1996, of the Court of Appeals in C.A.
G.R. CV 37897, which affirmed the decision of the Regional Trial Court of Pasig, Branch 160,
declaring the marriage contract between private respondent Edgardo M. Reyes and petitioner Ofelia
P. Ty null and void ab initio. It also ordered private respondent to pay P15,000.00 as monthly
support for their children Faye Eloise Reyes and Rachel Anne Reyes.

As shown in the records of the case, private respondent married Anna Maria Regina Villanueva in a
civil ceremony on March 29, 1977, in Manila. Then they had a church wedding on August 27, 1977.
However, on August 4, 1980, the Juvenile and Domestic Relations Court of Quezon City declared
their marriage null and voidab initio for lack of a valid marriage license. The church wedding on
August 27, 1977, was also declared null andvoid ab initio for lack of consent of the parties.

Even before the decree was issued nullifying his marriage to Anna Maria, private respondent wed
Ofelia P. Ty, herein petitioner, on April 4, 1979, in ceremonies officiated by the judge of the City
Court of Pasay. On April 4, 1982, they also had a church wedding in Makati, Metro Manila.

On January 3, 1991, private respondent filed a Civil Case 1853-J with the RTC of Pasig, Branch
160, praying that his marriage to petitioner be declared null and void. He alleged that they had no
marriage license when they got married. He also averred that at the time he married petitioner, he
was still married to Anna Maria. He stated that at the time he married petitioner the decree of nullity
of his marriage to Anna Maria had not been issued. The decree of nullity of his marriage to Anna
Maria was rendered only on August 4, 1980, while his civil marriage to petitioner took place on April
4, 1979.

Petitioner, in defending her marriage to private respondent, pointed out that his claim that their
marriage was contracted without a valid license is untrue. She submitted their Marriage License No.
5739990 issued at Rosario, Cavite on April 3, 1979, as Exh. 11, 12 and 12-A. He did not question
this document when it was submitted in evidence. Petitioner also submitted the decision of the
Juvenile and Domestic Relations Court of Quezon City dated August 4, 1980, which declared null
and void his civil marriage to Anna Maria Regina Villanueva celebrated on March 29, 1977, and his
church marriage to said Anna Maria on August 27, 1977. These documents were submitted as
evidence during trial and, according to petitioner, are therefore deemed sufficient proof of the facts
therein. The fact that the civil marriage of private respondent and petitioner took place on April 4,
1979, before the judgment declaring his prior marriage as null and void is undisputed. It also
appears indisputable that private respondent and petitioner had a church wedding ceremony on April
4, 1982.1

The Pasig RTC sustained private respondents civil suit and declared his marriage to herein
petitioner null andvoid ab initio in its decision dated November 4, 1991. Both parties appealed to
respondent Court of Appeals. On July 24, 1996, the appellate court affirmed the trial courts decision.
It ruled that a judicial declaration of nullity of the first marriage (to Anna Maria) must first be secured
before a subsequent marriage could be validly contracted. Said the appellate court:

We can accept, without difficulty, the doctrine cited by defendants counsel that no judicial decree is
necessary to establish the invalidity of void marriages. It does not say, however, that a second
marriage may proceed even without a judicial decree. While it is true that if a marriage is null and
void, ab initio, there is in fact no subsisting marriage, we are unwilling to rule that the matter of
whether a marriage is valid or not is for each married spouse to determine for himself for this
would be the consequence of allowing a spouse to proceed to a second marriage even before a
competent court issues a judicial decree of nullity of his first marriage. The results would be
disquieting, to say the least, and could not have been the intendment of even the now-repealed
provisions of the Civil Code on marriage.

xxx
WHEREFORE, upon the foregoing ratiocination, We modify the appealed Decision in this wise:

1. The marriage contracted by plaintiff-appellant [herein private respondent] Eduardo M.

Reyes and defendant-appellant [herein petitioner] Ofelia P. Ty is declared null and void ab
initio;

2. Plaintiff-appellant Eduardo M. Reyes is ordered to give monthly support in the amount of

P15,000.00 to his children Faye Eloise Reyes and Rachel Anne Reyes from November 4,
1991; and

3. Cost against plaintiff-appellant Eduardo M. Reyes.

SO ORDERED.2

Petitioners motion for reconsideration was denied. Hence, this instant petition asserting that the
Court of Appeals erred:

I.

BOTH IN THE DECISION AND THE RESOLUTION, IN REQUIRING FOR THE VALIDITY
OF PETITIONERS MARRIAGE TO RESPONDENT, A JUDICIAL DECREE NOT
REQUIRED BY LAW.

II

IN THE RESOLUTION, IN APPLYING THE RULING IN DOMINGO VS. COURT OF

APPEALS.

III

IN BOTH THE DECISION AND RESOLUTION IN NOT CONSIDERING THE CIVIL

EFFECTS OF THE RELIGIOUS RATIFICATION WHICH USED THE SAME MARRIAGE
LICENSE.

IV

IN THE DECISION NOT GRANTING MORAL AND EXEMPLARY DAMAGES TO THE

DEFENDANT-APPELLANT.

The principal issue in this case is whether the decree of nullity of the first marriage is required before
a subsequent marriage can be entered into validly? To resolve this question, we shall go over
applicable laws and pertinent cases to shed light on the assigned errors, particularly the first and the
second which we shall discuss jointly.

In sustaining the trial court, the Court of Appeals declared the marriage of petitioner to private
respondent null and void for lack of a prior judicial decree of nullity of the marriage between private
respondent and Villanueva. The appellate court rejected petitioners claim that People v.
Mendoza3 and People v. Aragon4 are applicable in this case. For these cases held that where a
marriage is void from its performance, no judicial decree is necessary to establish its invalidity. But
the appellate court said these cases, decided before the enactment of the Family Code (E.O. No.
209 as amended by E.O No. 227), no longer control. A binding decree is now needed and must be
read into the provisions of law previously obtaining.5

In refusing to consider petitioners appeal favorably, the appellate court also said:

Terre v. Attorney Terre, Adm. Case No. 2349, 3 July 1992 is mandatory precedent for this case.
Although decided by the High Court in 1992, the facts situate it within the regime of the now-
repealed provisions of the Civil Code, as in the instant case.

xxx

For purposes of determining whether a person is legally free to contract a second marriage, a
judicial declaration that the first marriage was null and void ab initio is essential. . . .6

At the outset, we must note that private respondents first and second marriages contracted in 1977
and 1979, respectively, are governed by the provisions of the Civil Code. The present case differs
significantly from the recent cases of Bobis v. Bobis7 and Mercado v. Tan,8 both involving
a criminal case for bigamy where the bigamous marriage was contracted during the effectivity of the
Family Code,9 under which a judicial declaration of nullity of marriage is clearly required.

Pertinent to the present controversy, Article 83 of the Civil Code provides that:

Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse
of such person with any person other than such first spouse shall be illegal and void from its
performance, unless:

(1) The first marriage was annulled or dissolved; or

(2) The first spouse had been absent for seven consecutive years at the time of the second
marriage without the spouse present having news of the absentee being alive, or if the
absentee, though he has been absent for less than seven years, is generally considered as
dead and before any person believed to be so by the spouse present at the time of
contracting such subsequent marriage, or if the absentee is presumed dead according to
articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until
declared null and void by a competent court.

As to whether a judicial declaration of nullity of a void marriage is necessary, the Civil Code contains
no express provision to that effect. Jurisprudence on the matter, however, appears to be conflicting.

Originally, in People v. Mendoza,10 and People v. Aragon,11 this Court held that no judicial decree is
necessary to establish the nullity of a void marriage. Both cases involved the same factual milieu.
Accused contracted a second marriage during the subsistence of his first marriage. After the death
of his first wife, accused contracted a third marriage during the subsistence of the second marriage.
The second wife initiated a complaint for bigamy. The Court acquitted accused on the ground that
the second marriage is void, having been contracted during the existence of the first marriage. There
is no need for a judicial declaration that said second marriage is void. Since the second marriage is
void, and the first one terminated by the death of his wife, there are no two subsisting valid
marriages. Hence, there can be no bigamy. Justice Alex Reyes dissented in both cases, saying that
it is not for the spouses but the court to judge whether a marriage is void or not.
In Gomez v. Lipana,12 and Consuegra v. Consuegra,13 however, we recognized the right of the
second wife who entered into the marriage in good faith, to share in their acquired estate and in
proceeds of the retirement insurance of the husband. The Court observed that although the second
marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still
subsisting, still there was a need for judicial declaration of such nullity (of the second marriage). And
since the death of the husband supervened before such declaration, we upheld the right of the
second wife to share in the estate they acquired, on grounds of justice and equity.14

But in Odayat v. Amante (1977),15 the Court adverted to Aragon and Mendoza as precedents. We
exonerated a clerk of court of the charge of immorality on the ground that his marriage to Filomena
Abella in October of 1948 was void, since she was already previously married to one Eliseo Portales
in February of the same year. The Court held that no judicial decree is necessary to establish the
invalidity of void marriages. This ruling was affirmed in Tolentino v. Paras.16

Yet again in Wiegel v. Sempio-Diy (1986),17 the Court held that there is a need for a judicial
declaration of nullity of a void marriage. In Wiegel, Lilia married Maxion in 1972. In 1978, she
married another man, Wiegel. Wiegel filed a petition with the Juvenile Domestic Relations Court to
declare his marriage to Lilia as void on the ground of her previous valid marriage. The Court,
expressly relying on Consuegra, concluded that:18

There is likewise no need of introducing evidence about the existing prior marriage of her first
husband at the time they married each other, for then such a marriage though void still needs
according to this Court a judicial declaration (citing Consuegra) of such fact and for all legal intents
and purposes she would still be regarded as a married woman at the time she contracted her
marriage with respondent Karl Heinz Wiegel; accordingly, the marriage of petitioner and respondent
would be regarded VOID under the law. (Emphasis supplied).

In Yap v. Court of Appeals,19 however, the Court found the second marriage void without need of
judicial declaration, thus reverting to the Odayat, Mendoza and Aragon rulings.

At any rate, the confusion under the Civil Code was put to rest under the Family Code. Our rulings
in Gomez, Consuegra, and Wiegel were eventually embodied in Article 40 of the Family
Code.20 Article 40 of said Code expressly required a judicial declaration of nullity of marriage

Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on
the basis solely of a final judgment declaring such previous marriage void.

In Terre v. Terre (1992)21 the Court, applying Gomez, Consuegra and Wiegel, categorically stated
that a judicial declaration of nullity of a void marriage is necessary. Thus, we disbarred a lawyer for
contracting a bigamous marriage during the subsistence of his first marriage. He claimed that his
first marriage in 1977 was void since his first wife was already married in 1968. We held that Atty.
Terre should have known that the prevailing case law is that "for purposes of determining whether a
person is legally free to contract a second marriage, a judicial declaration that the first marriage was
null and void ab initio is essential."

The Court applied this ruling in subsequent cases. In Domingo v. Court of Appeals (1993),22 the
Court held:

Came the Family Code which settled once and for all the conflicting jurisprudence on the matter. A
declaration of absolute nullity of marriage is now explicitly required either as a cause of action or a
ground for defense. (Art. 39 of the Family Code). Where the absolute nullity of a previous marriage is
sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law
for said projected marriage to be free from legal infirmity is a final judgment declaring the previous
marriage void. (Family Code, Art. 40; See also arts. 11, 13, 42, 44, 48, 50, 52, 54, 86, 99, 147,
148).23

However, a recent case applied the old rule because of the peculiar circumstances of the case.
In Apiag v. Cantero, (1997)24 the first wife charged a municipal trial judge of immorality for entering
into a second marriage. The judge claimed that his first marriage was void since he was merely
forced into marrying his first wife whom he got pregnant. On the issue of nullity of the first marriage,
we applied Odayat, Mendoza and Aragon. We held that since the second marriage took place and
all the children thereunder were born before the promulgation ofWiegel and the effectivity of the
Family Code, there is no need for a judicial declaration of nullity of the first marriage pursuant to
prevailing jurisprudence at that time.

Similarly, in the present case, the second marriage of private respondent was entered into in 1979,
before Wiegel. At that time, the prevailing rule was found in Odayat, Mendoza and Aragon. The first
marriage of private respondent being void for lack of license and consent, there was no need for
judicial declaration of its nullity before he could contract a second marriage. In this case, therefore,
we conclude that private respondents second marriage to petitioner is valid.

Moreover, we find that the provisions of the Family Code cannot be retroactively applied to the
present case, for to do so would prejudice the vested rights of petitioner and of her children. As held
in Jison v. Court of Appeals,25the Family Code has retroactive effect unless there be impairment of
vested rights. In the present case, that impairment of vested rights of petitioner and the children is
patent. Additionally, we are not quite prepared to give assent to the appellate courts finding that
despite private respondents "deceit and perfidy" in contracting marriage with petitioner, he could
benefit from her silence on the issue. Thus, coming now to the civil effects of the church ceremony
wherein petitioner married private respondent using the marriage license used three years earlier in
the civil ceremony, we find that petitioner now has raised this matter properly. Earlier petitioner
claimed as untruthful private respondents allegation that he wed petitioner but they lacked a
marriage license. Indeed we find there was a marriage license, though it was the same license
issued on April 3, 1979 and used in both the civil and the church rites. Obviously, the church
ceremony was confirmatory of their civil marriage. As petitioner contends, the appellate court erred
when it refused to recognize the validity and salutary effects of said canonical marriage on a
technicality, i.e. that petitioner had failed to raise this matter as affirmative defense during trial. She
argues that such failure does not prevent the appellate court from giving her defense due
consideration and weight. She adds that the interest of the State in protecting the inviolability of
marriage, as a legal and social institution, outweighs such technicality. In our view, petitioner and
private respondent had complied with all the essential and formal requisites for a valid marriage,
including the requirement of a valid license in the first of the two ceremonies. That this license was
used legally in the celebration of the civil ceremony does not detract from the ceremonial use thereof
in the church wedding of the same parties to the marriage, for we hold that the latter rites served not
only to ratify but also to fortify the first. The appellate court might have its reasons for brushing aside
this possible defense of the defendant below which undoubtedly could have tendered a valid issue,
but which was not timely interposed by her before the trial court. But we are now persuaded we
cannot play blind to the absurdity, if not inequity, of letting the wrongdoer profit from what the CA
calls "his own deceit and perfidy."

On the matter of petitioners counterclaim for damages and attorneys fees. Although the appellate
1wphi1

court admitted that they found private respondent acted "duplicitously and craftily" in marrying
petitioner, it did not award moral damages because the latter did not adduce evidence to support her
claim.26
Like the lower courts, we are also of the view that no damages should be awarded in the present
case, but for another reason. Petitioner wants her marriage to private respondent held valid and
subsisting. She is suing to maintain her status as legitimate wife. In the same breath, she asks for
damages from her husband for filing a baseless complaint for annulment of their marriage which
caused her mental anguish, anxiety, besmirched reputation, social humiliation and alienation from
her parents. Should we grant her prayer, we would have a situation where the husband pays the
wife damages from conjugal or common funds. To do so, would make the application of the law
absurd. Logic, if not common sense, militates against such incongruity. Moreover, our laws do not
comprehend an action for damages between husband and wife merely because of breach of a
marital obligation.27 There are other remedies.28

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated July
24, 1996 and its Resolution dated November 7, 1996, are reversed partially, so that the marriage of
petitioner Ofelia P. Ty and private respondent Edgardo M. Reyes is hereby DECLARED VALID AND
SUBSISTING; and the award of the amount of P15,000.00 is RATIFIED and MAINTAINED as
monthly support to their two children, Faye Eloise Reyes and Rachel Anne Reyes, for as long as
they are of minor age or otherwise legally entitled thereto. Costs against private respondent.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

Footnotes

1See also Tison vs. CA, 276 SCRA 582, 593 (1997); Quebral vs. CA, 252 SCRA 353, 365
(1996); Son vs. Son, 251 SCRA 556, 564 (1995); re proof of facts cited.

2 Rollo, pp. 48-52.

3 45 Phil 739 (1954).

4 100 SCRA 1033 (1957).

5 Rollo, p. 47.

6 Rollo, p. 49.

7 G.R. No. 138509, July 31, 2000.

8 G.R. No. 137110, August 1, 2000. In his dissenting and concurring opinion, Justice Vitug
opined that the necessity of a judicial declaration of nullity of a void marriage for the purpose
of remarriage should be held to refer merely to cases where it can be said that a marriage, at
least ostensibly, had taken place. No such judicial declaration of nullity, in his view, should
still be deemed essential when the "marriage," for instance, is between persons of the same
sex or when either or both parties had not at all given consent to the marriage. Indeed, it is
likely that Article 40 of the Family Code has been meant and intended to refer only to
marriages declared void under the provisions of Articles 35, 36, 37, 38 and 53 thereof.
37 SCRA 205

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 160347 November 29, 2006

ARCADIO and MARIA LUISA CARANDANG, Petitioners,

vs.
HEIRS OF QUIRINO A. DE GUZMAN, namely: MILAGROS DE GUZMAN, VICTOR DE GUZMAN,
REYNALDO DE GUZMAN, CYNTHIA G. RAGASA and QUIRINO DE GUZMAN,
JR., Respondents.

DECISION

CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari assailing the Court of Appeals Decision1 and Resolution
affirming the Regional Trial Court (RTC) Decision rendering herein petitioners Arcadio and Luisa
Carandang [hereinafter referred to as spouses Carandang] jointly and severally liable for their loan
to Quirino A. de Guzman.

The Court of Appeals summarized the facts as follows:

[Quirino de Guzman] and [the Spouses Carandang] are stockholders as well as corporate officers of
Mabuhay Broadcasting System (MBS for brevity), with equities at fifty four percent (54%) and forty
six percent (46%) respectively.

On November 26, 1983, the capital stock of MBS was increased, from P500,000 to P1.5 million
and P345,000 of this increase was subscribed by [the spouses Carandang]. Thereafter, on March 3,
1989, MBS again increased its capital stock, from P1.5 million to P3 million, [the spouses
Carandang] yet again subscribed to the increase. They subscribed to P93,750 worth of newly issued
capital stock.

[De Guzman] claims that, part of the payment for these subscriptions were paid by him, P293,250 for
the November 26, 1983 capital stock increase and P43,125 for the March 3, 1989 Capital Stock
increase or a total ofP336,375. Thus, on March 31, 1992, [de Guzman] sent a demand letter to [the
spouses Carandang] for the payment of said total amount.

[The spouses Carandang] refused to pay the amount, contending that a pre-incorporation agreement
was executed between [Arcadio Carandang] and [de Guzman], whereby the latter promised to pay
for the stock subscriptions of the former without cost, in consideration for [Arcadio Carandangs]
technical expertise, his newly purchased equipment, and his skill in repairing and upgrading
radio/communication equipment therefore, there is no indebtedness on their part [sic].

On June 5, 1992, [de Guzman] filed his complaint, seeking to recover the P336,375 together with
damages. After trial on the merits, the trial court disposed of the case in this wise:
"WHEREFORE, premises considered, judgment is hereby rendered in favor of [de Guzman].
Accordingly, [the spouses Carandang] are ordered to jointly and severally pay [de Guzman], to wit:

(1) P336,375.00 representing [the spouses Carandangs] loan to de Guzman;

(2) interest on the preceding amount at the rate of twelve percent (12%) per annum from
June 5, 1992 when this complaint was filed until the principal amount shall have been fully
paid;

(3) P20,000.00 as attorneys fees;

(4) Costs of suit.

The spouses Carandang appealed the RTC Decision to the Court of Appeals, which affirmed the
same in the 22 April 2003 assailed Decision:

WHEREFORE, in view of all the foregoing the assailed Decision is hereby AFFIRMED. No costs.2

The Motion for Reconsideration filed by the spouses Carandang was similarly denied by the Court of
Appeals in the 6 October 2003 assailed Resolution:

WHEREFORE, in view thereof, the motion for reconsideration is hereby DENIED and our Decision
of April 22, 2003, which is based on applicable law and jurisprudence on the matter is hereby
AFFIRMED and REITERATED.3

The spouses Carandang then filed before this Court the instant Petition for Review on Certiorari,
bringing forth the following issues:

I.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED MANIFEST ERROR

IN FAILING TO STRICTLY COMPLY WITH SECTION 16, RULE 3 OF THE 1997 RULES OF CIVIL
PROCEDURE.

II.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN ITS

FINDING THAT THERE IS AN ALLEGED LOAN FOR WHICH PETITIONERS ARE LIABLE,
CONTRARY TO EXPRESS PROVISIONS OF BOOK IV, TITLE XI, OF THE NEW CIVIL CODE
PERTAINING TO LOANS.

III.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN FINDING

THAT THE RESPONDENTS WERE ABLE TO DISCHARGE THEIR BURDEN OF PROOF, IN
COMPLETE DISREGARD OF THE REVISED RULES ON EVIDENCE.

IV.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE
ERROR WHEN IT FAILED TO APPLY SECTIONS 2 AND 7, RULE 3 OF THE 1997 RULES OF
CIVIL PROCEDURE.

V.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN FINDING

THAT THE PURPORTED LIABILITY OF PETITIONERS ARE JOINT AND SOLIDARY, IN
VIOLATION OF ARTICLE 1207 OF THE NEW CIVIL CODE.4

Whether or not the RTC Decision is void for failing to comply with Section 16, Rule 3 of the Rules of
Court

The spouses Carandang claims that the Decision of the RTC, having been rendered after the death
of Quirino de Guzman, is void for failing to comply with Section 16, Rule 3 of the Rules of Court,
which provides:

SEC. 16. Death of party; duty of counsel. Whenever a party to a pending action dies, and the claim
is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30)
days after such death of the fact thereof, and to give the name and address of his legal
representative or representatives. Failure of counsel to comply with this duty shall be a ground for
disciplinary action.

The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the
appointment of an executor or administrator and the court may appoint a guardian ad litem for the
minor heirs.

The court shall forthwith order the legal representative or representatives to appear and be
substituted within a period of thirty (30) days from notice.

If no legal representative is named by the counsel for the deceased party, or if the one so named
shall fail to appear within the specified period, the court may order the opposing party, within a
specified time, to procure the appointment of an executor or administrator for the estate of the
deceased and the latter shall immediately appear for and on behalf of the deceased. The court
charges in procuring such appointment, if defrayed by the opposing party, may be recovered as
costs.

The spouses Carandang posits that such failure to comply with the above rule renders void the
decision of the RTC, in adherence to the following pronouncements in Vda. de Haberer v. Court of
Appeals5 and Ferreria v. Vda. de Gonzales6 :

Thus, it has been held that when a party dies in an action that survives and no order is issued by the
court for the appearance of the legal representative or of the heirs of the deceased in substitution of
the deceased, and as a matter of fact no substitution has ever been effected, the trial held by the
court without such legal representatives or heirs and the judgment rendered after such trial are null
and void because the court acquired no jurisdiction over the persons of the legal representatives or
of the heirs upon whom the trial and judgment would be binding.7

In the present case, there had been no court order for the legal representative of the deceased to
appear, nor had any such legal representative appeared in court to be substituted for the deceased;
neither had the complainant ever procured the appointment of such legal representative of the
deceased, including appellant, ever asked to be substituted for the deceased. As a result, no valid
substitution was effected, consequently, the court never acquired jurisdiction over appellant for the
purpose of making her a party to the case and making the decision binding upon her, either
personally or as a representative of the estate of her deceased mother.8

However, unlike jurisdiction over the subject matter which is conferred by law and is not subject to
the discretion of the parties,9 jurisdiction over the person of the parties to the case may be waived
either expressly or impliedly.10 Implied waiver comes in the form of either voluntary appearance or a
failure to object.11

In the cases cited by the spouses Carandang, we held that there had been no valid substitution by
the heirs of the deceased party, and therefore the judgment cannot be made binding upon them. In
the case at bar, not only do the heirs of de Guzman interpose no objection to the jurisdiction of the
court over their persons; they are actually claiming and embracing such jurisdiction. In doing so, their
waiver is not even merely implied (by their participation in the appeal of said Decision), but express
(by their explicit espousal of such view in both the Court of Appeals and in this Court). The heirs of
de Guzman had no objection to being bound by the Decision of the RTC.

Thus, lack of jurisdiction over the person, being subject to waiver, is a personal defense which can
only be asserted by the party who can thereby waive it by silence.

It also pays to look into the spirit behind the general rule requiring a formal substitution of heirs. The
underlying principle therefor is not really because substitution of heirs is a jurisdictional requirement,
but because non-compliance therewith results in the undeniable violation of the right to due process
of those who, though not duly notified of the proceedings, are substantially affected by the decision
rendered therein.12 Such violation of due process can only be asserted by the persons whose rights
are claimed to have been violated, namely the heirs to whom the adverse judgment is sought to be
enforced.

Care should, however, be taken in applying the foregoing conclusions. In People v.

Florendo,13 where we likewise held that the proceedings that took place after the death of the party
are void, we gave another reason for such nullity: "the attorneys for the offended party ceased to be
the attorneys for the deceased upon the death of the latter, the principal x x x." Nevertheless, the
case at bar had already been submitted for decision before the RTC on 4 June 1998, several
months before the passing away of de Guzman on 19 February 1999. Hence, no further proceedings
requiring the appearance of de Guzmans counsel were conducted before the promulgation of the
RTC Decision. Consequently, de Guzmans counsel cannot be said to have no authority to appear in
trial, as trial had already ceased upon the death of de Guzman.

In sum, the RTC Decision is valid despite the failure to comply with Section 16, Rule 3 of the Rules
of Court, because of the express waiver of the heirs to the jurisdiction over their persons, and
because there had been, before the promulgation of the RTC Decision, no further proceedings
requiring the appearance of de Guzmans counsel.

Before proceeding with the substantive aspects of the case, however, there is still one more
procedural issue to tackle, the fourth issue presented by the spouses Carandang on the non-
inclusion in the complaint of an indispensable party.

Whether or not the RTC should have dismissed the case for failure to state a cause of action,
considering that Milagros de Guzman, allegedly an indispensable party, was not included as a party-
plaintiff
The spouses Carandang claim that, since three of the four checks used to pay their stock
subscriptions were issued in the name of Milagros de Guzman, the latter should be considered an
indispensable party. Being such, the spouses Carandang claim, the failure to join Mrs. de Guzman
as a party-plaintiff should cause the dismissal of the action because "(i)f a suit is not brought in the
name of or against the real party in interest, a motion to dismiss may be filed on the ground that the
complaint states no cause of action."14

The Court of Appeals held:

We disagree. The joint account of spouses Quirino A de Guzman and Milagros de Guzman from
which the four (4) checks were drawn is part of their conjugal property and under both the Civil Code
and the Family Code the husband alone may institute an action for the recovery or protection of the
spouses conjugal property.

Thus, in Docena v. Lapesura [355 SCRA 658], the Supreme Court held that "x x x Under the New
Civil Code, the husband is the administrator of the conjugal partnership. In fact, he is the sole
administrator, and the wife is not entitled as a matter of right to join him in this endeavor. The
husband may defend the conjugal partnership in a suit or action without being joined by the wife. x x
x Under the Family Code, the administration of the conjugal property belongs to the husband and the
wife jointly. However, unlike an act of alienation or encumbrance where the consent of both spouses
is required, joint management or administration does not require that the husband and wife always
act together. Each spouse may validly exercise full power of management alone, subject to the
intervention of the court in proper cases as provided under Article 124 of the Family Code. x x x."

The Court of Appeals is correct. Petitioners erroneously interchange the terms "real party in interest"
and "indispensable party." A real party in interest is the party who stands to be benefited or injured
by the judgment of the suit, or the party entitled to the avails of the suit.15 On the other hand, an
indispensable party is a party in interest without whom no final determination can be had of an
action,16 in contrast to a necessary party, which is one who is not indispensable but who ought to be
joined as a party if complete relief is to be accorded as to those already parties, or for a complete
determination or settlement of the claim subject of the action.17

The spouses Carandang are indeed correct that "(i)f a suit is not brought in the name of or against
the real party in interest, a motion to dismiss may be filed on the ground that the complaint states no
cause of action."18However, what dismissal on this ground entails is an examination of whether the
parties presently pleaded are interested in the outcome of the litigation, and not whether all persons
interested in such outcome are actually pleaded. The latter query is relevant in discussions
concerning indispensable and necessary parties, but not in discussions concerning real parties in
interest. Both indispensable and necessary parties are considered as real parties in interest, since
both classes of parties stand to be benefited or injured by the judgment of the suit.

Quirino and Milagros de Guzman were married before the effectivity of the Family Code on 3 August
1988. As they did not execute any marriage settlement, the regime of conjugal partnership of gains
govern their property relations.19

All property acquired during the marriage, whether the acquisition appears to have been made,
contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the
contrary is proved.20Credits are personal properties,21 acquired during the time the loan or other
credit transaction was executed. Therefore, credits loaned during the time of the marriage are
presumed to be conjugal property.
Consequently, assuming that the four checks created a debt for which the spouses Carandang are
liable, such credits are presumed to be conjugal property. There being no evidence to the contrary,
such presumption subsists. As such, Quirino de Guzman, being a co-owner of specific partnership
property,22 is certainly a real party in interest. Dismissal on the ground of failure to state a cause of
action, by reason that the suit was allegedly not brought by a real party in interest, is therefore
unwarranted.

So now we come to the discussion concerning indispensable and necessary parties. When an
indispensable party is not before the court, the action should likewise be dismissed.23 The absence
of an indispensable party renders all subsequent actuations of the court void, for want of authority to
act, not only as to the absent parties but even as to those present.24 On the other hand, the non-
joinder of necessary parties do not result in the dismissal of the case. Instead, Section 9, Rule 3 of
the Rules of Court provides for the consequences of such non-joinder:

Sec. 9. Non-joinder of necessary parties to be pleaded. Whenever in any pleading in which a claim
is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall
state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order
the inclusion of the omitted necessary party if jurisdiction over his person may be obtained.

The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a
waiver of the claim against such party.

The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and
the judgment rendered therein shall be without prejudice to the rights of such necessary party.

Non-compliance with the order for the inclusion of a necessary party would not warrant the dismissal
of the complaint. This is an exception to Section 3, Rule 17 which allows the dismissal of the
complaint for failure to comply with an order of the court, as Section 9, Rule 3 specifically provides
for the effect of such non-inclusion: it shall not prevent the court from proceeding in the action, and
the judgment rendered therein shall be without prejudice to the rights of such necessary party.
Section 11, Rule 3 likewise provides that the non-joinder of parties is not a ground for the dismissal
of the action.

Other than the indispensable and necessary parties, there is a third set of parties: the pro-forma
parties, which are those who are required to be joined as co-parties in suits by or against another
party as may be provided by the applicable substantive law or procedural rule.25 An example is
provided by Section 4, Rule 3 of the Rules of Court:

Sec. 4. Spouses as parties. Husband and wife shall sue or be sued jointly, except as provided by
law.

Pro-forma parties can either be indispensable, necessary or neither indispensable nor necessary.
The third case occurs if, for example, a husband files an action to recover a property which he
claims to be part of his exclusive property. The wife may have no legal interest in such property, but
the rules nevertheless require that she be joined as a party.

In cases of pro-forma parties who are neither indispensable nor necessary, the general rule under
Section 11, Rule 3 must be followed: such non-joinder is not a ground for dismissal. Hence, in a
case concerning an action to recover a sum of money, we held that the failure to join the spouse in
that case was not a jurisdictional defect.26The non-joinder of a spouse does not warrant dismissal as
it is merely a formal requirement which may be cured by amendment.27
Conversely, in the instances that the pro-forma parties are also indispensable or necessary parties,
the rules concerning indispensable or necessary parties, as the case may be, should be applied.
Thus, dismissal is warranted only if the pro-forma party not joined in the complaint is an
indispensable party.

Milagros de Guzman, being presumed to be a co-owner of the credits allegedly extended to the
spouses Carandang, seems to be either an indispensable or a necessary party. If she is an
indispensable party, dismissal would be proper. If she is merely a necessary party, dismissal is not
warranted, whether or not there was an order for her inclusion in the complaint pursuant to Section
9, Rule 3.

Article 108 of the Family Code provides:

Art. 108. The conjugal partnership shall be governed by the rules on the contract of partnership in all
that is not in conflict with what is expressly determined in this Chapter or by the spouses in their
marriage settlements.

This provision is practically the same as the Civil Code provision it superceded:

Art. 147. The conjugal partnership shall be governed by the rules on the contract of partnership in all
that is not in conflict with what is expressly determined in this Chapter.

In this connection, Article 1811 of the Civil Code provides that "[a] partner is a co-owner with the
other partners of specific partnership property." Taken with the presumption of the conjugal nature of
the funds used to finance the four checks used to pay for petitioners stock subscriptions, and with
the presumption that the credits themselves are part of conjugal funds, Article 1811 makes Quirino
and Milagros de Guzman co-owners of the alleged credit.

Being co-owners of the alleged credit, Quirino and Milagros de Guzman may separately bring an
action for the recovery thereof. In the fairly recent cases of Baloloy v. Hular28 and Adlawan v.
Adlawan,29 we held that, in a co-ownership, co-owners may bring actions for the recovery of co-
owned property without the necessity of joining all the other co-owners as co-plaintiffs because the
suit is presumed to have been filed for the benefit of his co-owners. In the latter case and in that
of De Guia v. Court of Appeals,30 we also held that Article 487 of the Civil Code, which provides that
any of the co-owners may bring an action for ejectment, covers all kinds of action for the recovery of
possession.31

In sum, in suits to recover properties, all co-owners are real parties in interest. However, pursuant to
Article 487 of the Civil Code and relevant jurisprudence, any one of them may bring an action, any
kind of action, for the recovery of co-owned properties. Therefore, only one of the co-owners, namely
the co-owner who filed the suit for the recovery of the co-owned property, is an indispensable party
thereto. The other co-owners are not indispensable parties. They are not even necessary parties, for
a complete relief can be accorded in the suit even without their participation, since the suit is
presumed to have been filed for the benefit of all co-owners.32

We therefore hold that Milagros de Guzman is not an indispensable party in the action for the
recovery of the allegedly loaned money to the spouses Carandang. As such, she need not have
been impleaded in said suit, and dismissal of the suit is not warranted by her not being a party
thereto.

Whether or not respondents were able to prove the loan sought to be collected from petitioners
In the second and third issues presented by the spouses Carandang, they claim that the de
Guzmans failed to prove the alleged loan for which the spouses Carandang were held liable. As
previously stated, spouses Quirino and Milagros de Guzman paid for the stock subscriptions of the
spouses Carandang, amounting to P336,375.00. The de Guzmans claim that these payments were
in the form of loans and/or advances and it was agreed upon between the late Quirino de Guzman,
Sr. and the spouses Carandang that the latter would repay him. Petitioners, on the other hand,
argue that there was an oral pre-incorporation agreement wherein it was agreed that Arcardio
Carandang would always maintain his 46% equity participation in the corporation even if the capital
structures were increased, and that Quirino de Guzman would personally pay the equity
shares/stock subscriptions of Arcardio Carandang with no cost to the latter.

On this main issue, the Court of Appeals held:

[The spouses Carandang] aver in its ninth assigned error that [the de Guzmans] failed to prove by
preponderance of evidence, either the existence of the purported loan or the non-payment thereof.

Simply put, preponderance of evidence means that the evidence as a whole adduced by one side is
superior to that of the other. The concept of preponderance of evidence refers to evidence that is of
greater weight, or more convincing, than that which is offered in opposition to it; it means probability
of truth.

[The spouses Carandang] admitted that it was indeed [the de Guzmans] who paid their stock
subscriptions and their reason for not reimbursing the latter is the alleged pre-incorporation
agreement, to which they offer no clear proof as to its existence.

It is a basic rule in evidence that each party must prove his affirmative allegation. Thus, the plaintiff
or complainant has to prove his affirmative allegations in the complaints and the defendant or
respondent has to prove the affirmative allegations in his affirmative defenses and counterclaims.33

The spouses Carandang, however, insist that the de Guzmans have not proven the loan itself,
having presented evidence only of the payment in favor of the Carandangs. They claim:

It is an undeniable fact that payment is not equivalent to a loan. For instance, if Mr. "A" decides to
pay for Mr. "Bs" obligation, that payment by Mr. "A" cannot, by any stretch of imagination, possibly
mean that there is now a loan by Mr. "B" to Mr. "A". There is a possibility that such payment by Mr.
"A" is purely out of generosity or that there is a mutual agreement between them. As applied to the
instant case, that mutual agreement is the pre-incorporation agreement (supra) existing between Mr.
de Guzman and the petitioners --- to the effect that the former shall be responsible for paying stock
subscriptions of the latter. Thus, when Mr. de Guzman paid for the stock subscriptions of the
petitioners, there was no loan to speak of, but only a compliance with the pre-incorporation
agreement.34

The spouses Carandang are mistaken. If indeed a Mr. "A" decides to pay for a Mr. "Bs" obligation,
the presumption is that Mr. "B" is indebted to Mr. "A" for such amount that has been paid. This is
pursuant to Articles 1236 and 1237 of the Civil Code, which provide:

Art. 1236. The creditor is not bound to accept payment or performance by a third person who has no
interest in the fulfillment of the obligation, unless there is a stipulation to the contrary.

Whoever pays for another may demand from the debtor what he has paid, except that if he paid
without the knowledge or against the will of the debtor, he can recover only insofar as the payment
has been beneficial to the debtor.
Art. 1237. Whoever pays on behalf of the debtor without the knowledge or against the will of the
latter, cannot compel the creditor to subrogate him in his rights, such as those arising from a
mortgage, guarantee, or penalty.

Articles 1236 and 1237 are clear that, even in cases where the debtor has no knowledge of payment
by a third person, and even in cases where the third person paid against the will of the debtor, such
payment would produce a debt in favor of the paying third person. In fact, the only consequences for
the failure to inform or get the consent of the debtor are the following: (1) the third person can
recover only insofar as the payment has been beneficial to the debtor; and (2) the third person is not
subrogated to the rights of the creditor, such as those arising from a mortgage, guarantee or
penalty.35

We say, however, that this is merely a presumption. By virtue of the parties freedom to contract, the
parties could stipulate otherwise and thus, as suggested by the spouses Carandang, there is indeed
a possibility that such payment by Mr. "A" was purely out of generosity or that there was a mutual
agreement between them. But such mutual agreement, being an exception to presumed course of
events as laid down by Articles 1236 and 1237, must be adequately proven.

The de Guzmans have successfully proven their payment of the spouses Carandangs stock
subscriptions. These payments were, in fact, admitted by the spouses Carandang. Consequently, it
is now up to the spouses Carandang to prove the existence of the pre-incorporation agreement that
was their defense to the purported loan.

Unfortunately for the spouses Carandang, the only testimony which touched on the existence and
substance of the pre-incorporation agreement, that of petitioner Arcardio Carandang, was stricken
off the record because he did not submit himself to a cross-examination of the opposing party. On
the other hand, the testimonies of Romeo Saavedra,36 Roberto S. Carandang,37 Gertrudes Z.
Esteban,38 Ceferino Basilio,39 and Ma. Luisa Carandang40touched on matters other than the
existence and substance of the pre-incorporation agreement. So aside from the fact that these
witnesses had no personal knowledge as to the alleged existence of the pre-incorporation
agreement, the testimonies of these witnesses did not even mention the existence of a pre-
incorporation agreement.

Worse, the testimonies of petitioners Arcadio Carandang and Ma. Luisa Carandang even
contradicted the existence of a pre-incorporation agreement because when they were asked by their
counsel regarding the matter of the check payments made by the late Quirino A. de Guzman, Sr. in
their behalf, they said that they had already paid for it thereby negating their own defense that there
was a pre-incorporation agreement excusing themselves from paying Mr. de Guzman the amounts
he advanced or loaned to them. This basic and irrefutable fact can be gleaned from their testimonies
which the private respondents are quoting for easy reference:

a. With respect to the testimony of Ma. Luisa Carandang

Q: Now, can you tell this Honorable Court how do you feel with respect to the Complaint of the
plaintiff in this case charging you that you paid for this year and asking enough to paid (sic) your tax?

A: We have paid already, so, we are not liable for anything payment (sic).41

b. With respect to the testimony of Arcadio Carandang

"Q: How much?

A: P40,000.00 to P50,000.00 per month.

Q: The plaintiff also claimed thru witness Edgar Ragasa, that there were receipts issued for the
payment of your shares; which receipts were marked as Exhibits "G" to "L" (Plaintiff).

Im showing to you these receipts so marked by the plaintiff as their exhibits which were issued in
the name of Ma. Luisa Carandang, your wife; and also, Arcadio M. Carandang. Will you please go
over this Official Receipt and state for the records, who made for the payment stated in these
receipts in your name?

A: I paid for those shares."42

There being no testimony or documentary evidence proving the existence of the pre-incorporation
agreement, the spouses Carandang are forced to rely upon an alleged admission by the original
plaintiff of the existence of the pre-incorporation agreement.

Petitioners claim that the late Quirino A. de Guzman, Sr. had admitted the existence of the pre-
incorporation agreement by virtue of paragraphs 13 and 14 of their Answer and paragraph 4 of
private respondents Reply.

Paragraphs 13 and 14 of petitioners Answer dated 7 July 1992 state in full:

13. Sometime in November, 1973 or thereabout, herein plaintiff invited defendant Arcadio M.
Carandang to a joint venture by pooling together their technical expertise, equipments, financial
resources and franchise. Plaintiff proposed to defendant and mutually agreed on the following:

1. That they would organize a corporation known as Mabuhay Broadcasting Systems, Inc.

2. Considering the technical expertise and talent of defendant Arcadio M. Carandang and his
new equipments he bought, and his skill in repairing and modifying radio/communication
equipments into high proficiency, said defendant would have an equity participation in the
corporation of 46%, and plaintiff 54% because of his financial resources and franchise.

3. That defendant would always maintain his 46% equity participation in the corporation even
if the capital structures are increased, and that plaintiff would personally pay the equity
shares/stock subscriptions of defendant with no cost to the latter.

4. That because of defendants expertise in the trade including the marketing aspects, he
would be the President and General Manager, and plaintiff the Chairman of the Board.

5. That considering their past and trustworthy relations, they would maintain such relations in
the joint venture without any mental reservation for their common benefit and success of the
business.

14. Having mutually agreed on the above arrangements, the single proprietorship of plaintiff
was immediately spun-off into a corporation now known as Mabuhay Broadcasting System,
Inc. The incorporators are plaintiff and his family members/nominees controlling jointly 54%
of the stocks and defendant Arcadio M. Carandang controlling singly 46% as previously
agreed.43

Meanwhile, paragraphs 3 and 4 of private respondents Reply dated 29 July 1992 state in full:
3. Plaintiffs admits the allegation in paragraph 13.1 of the Answer only insofar the plaintiff and
defendant Arcadio M. Carandang organized a corporation known as Mabuhay Broadcasting
Systems, Inc. Plaintiff specifically denies the other allegations in paragraph 13 of the Answer, the
same being devoid of any legal or factual bases. The truth of the matter is that defendant Arcadio M.
Carandang was not able to pay plaintiff the agreed amount of the lease for a number of months
forcing the plaintiff to terminate lease. Additionally, the records would show that it was the defendant
Arcadio M. Carandang who proposed a joint venture with the plaintiff.

It appears that plaintiff agreed to the formation of the corporation principally because of a directive of
then President Marcos indicating the need to broaden the ownership of radio broadcasting stations.
The plaintiff owned the franchise, the radio transmitter, the antenna tower, the building containing
the radio transmitter and other equipment. Verily, he would be placed in a great disadvantage if he
would still have to personally pay for the shares of defendant Arcadio M. Carandang.

4. Plaintiff admits the allegations in paragraph 14 of the Answer.44

In effect, the spouses Carandang are relying on the fact that Quirino de Guzman stated that he
admitted paragraph 14 of the Answer, which incidentally contained the opening clause "(h)aving
mutually agreed on the above arrangements, x x x."

Admissions, however, should be clear and unambiguous. This purported admission by Quirino de
Guzman reeks of ambiguity, as the clause "(h)aving mutually agreed on the above arrangements,"
seems to be a mere introduction to the statement that the single proprietorship of Quirino de
Guzman had been converted into a corporation. If Quirino de Guzman had meant to admit
paragraph 13.3, he could have easily said so, as he did the other paragraphs he categorically
admitted. Instead, Quirino de Guzman expressly stated the opposite: that "(p)laintiff specifically
denies the other allegations of paragraph 13 of the Answer."45 The Reply furthermore states that the
only portion of paragraph 13 which Quirino de Guzman had admitted is paragraph 13.1, and only
insofar as it said that Quirino de Guzman and Arcardio Carandang organized Mabuhay Broadcasting
Systems, Inc.46

All the foregoing considered, we hold that Quirino de Guzman had not admitted the alleged pre-
incorporation agreement. As there was no admission, and as the testimony of Arcardio Carandang
was stricken off the record, we are constrained to rule that there was no pre-incorporation
agreement rendering Quirino de Guzman liable for the spouses Carandangs stock subscription. The
payment by the spouses de Guzman of the stock subscriptions of the spouses Carandang are
therefore by way of loan which the spouses Carandang are liable to pay. 1w phi 1

Whether or not the liability of the spouses Carandang is joint and solidary

Finally, the Court of Appeals also upheld the RTC Decision insofar as it decreed a solidary liability.
According to the Court of Appeals:

With regards (sic) the tenth assigned error, [the spouses Carandang] contend that:

"There is absolutely no evidence, testimonial or documentary, showing that the purported obligation
of [the spouses Carandang] is joint and solidary. x x x

"Furthermore, the purported obligation of [the spouses Carandang] does not at all qualify as one of
the obligations required by law to be solidary x x x."
It is apparent from the facts of the case that [the spouses Carandang] were married way before the
effectivity of the Family Code hence; their property regime is conjugal partnership under the Civil
Code.

It must be noted that for marriages governed by the rules of conjugal partnership of gains, an
obligation entered into by the husband and wife is chargeable against their conjugal partnership and
it is the partnership, which is primarily bound for its repayment. Thus, when the spouses are sued for
the enforcement of the obligation entered into by them, they are being impleaded in their capacity as
representatives of the conjugal partnership and not as independent debtors, such that the concept of
joint and solidary liability, as between them, does not apply.47

The Court of Appeals is correct insofar as it held that when the spouses are sued for the
enforcement of the obligation entered into by them, they are being impleaded in their capacity as
representatives of the conjugal partnership and not as independent debtors. Hence, either of them
may be sued for the whole amount, similar to that of a solidary liability, although the amount is
chargeable against their conjugal partnership property. Thus, in the case cited by the Court of
Appeals, Alipio v. Court of Appeals,48 the two sets of defendant-spouses therein were held liable
for P25,300.00 each, chargeable to their respective conjugal partnerships.

WHEREFORE, the Decision of the Court of Appeals, affirming the judgment rendered against the
spouses Carandang, is hereby AFFIRMED with the following MODIFICATION: The spouses
Carandang are ORDERED to pay the following amounts from their conjugal partnership properties:

(1) P336,375.00 representing the spouses Carandangs loan to Quirino de Guzman; and

(2) Interest on the preceding amount at the rate of twelve percent (12%) per annum from 5
June 1992 when the complaint was filed until the principal amount can be fully paid; and

(3) P20,000.00 as attorneys fees.

No costs.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson

CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice

ROMEO J. CALLEJO, SR.

Associate Justice

CERTIFICATION
Pursuant to Article VIII, Section 13 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.

ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes

1Penned by Associate Justice Jose L. Sabio, Jr. with Associate Justices B.A. Adefuin-de la
Cruz and Hakim S. Abdulwahid, concurring; rollo, pp. 46-56.

2 Rollo, p. 55

3 Id. at 57-58.

4 Id. at 360-361.

5 G.R. Nos. L-42699 & L-42709, 26 May 1981, 104 SCRA 534.

6 104 Phil. 143 (1958).

7 Vda. de Haberer v. Court of Appeals, supra note 5 at 542.

8 Ferreria v. Vda. De Gonzales, supra note 6 at 149.

9 Zamora v. Court of Appeals, G.R. No. 78206, 19 March 1990, 183 SCRA 279, 283-284.

10 Salic v. COMELEC, G.R. Nos. 157007 & 157015, 17 March 2004, 425 SCRA 735, 754.

11 See Manila Railroad Co. v. Attorney-General, 20 Phil. 523, 535 ((1911).

12 Vda. De Salazar v. Court of Appeals, 320 Phil. 373, 377 (1995).

13 77 Phil. 16 (1946).

14Travel Wide Associated Sales (Phils.), Inc. v. Court of Appeals, G.R. No. 77356, 15 July
1991, 199 SCRA 205.

15 Rules of Court, Rule 3, Section 2.

16 Id., Section 7.

17 Rules of Court, Rule 3, Section 8.

18 Travel Wide Associated Sales (Phils.), Inc. v. Court of Appeals, supra note 14.
19 Civil Code, Article 118.

20 Family Code, Article 116; Civil Code, Article 160.

21 Civil Code, Article 417 provides:

"The following are also considered as personal property:

(1) Obligations and actions which have for their object movables and demandable
sums, and

(2) Shares of stock of agricultural, commercial and industrial entities, although they
may have real estate."

According to the eminent civilist Arturo M. Tolentino, the term "obligations" in this
article really means credits, and includes all kinds of credits. (Tolentino,
Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. II, 1992
Ed., p. 25.) Blacks Law Dictionary defines credit as "(t)he correlative of a debt; that
is, a debt considered from the creditors standpoint, or that is incoming or due to
one." (Blacks Law Dictionary, Sixth Ed., p. 367.)

22 Civil Code, Article 1811, in connection with Family Code, Article 108.

23People v. Rodriguez, 106 Phil. 325, 327 (1959); Arcelona v. Court of Appeals, G.R. No.
102900, 2 October 1997, 280 SCRA 20, 37-38.

24 Lim Tanhu v. Ramolete, G.R. No. L-40098, 29 August 1975, 66 SCRA 425, 448.

25 Regalado, Compendium, Vol. I, p. 78 (1999 Ed.).

26 Pacquing v. Marquez, 99 Phil. 141 (1956).

27 Uy, Jr. v. Court of Appeals, G.R. No. 83897, 9 November 1990, 191 SCRA 275, 283.

28 G.R. No. 157767, 9 September 2004, 438 SCRA 80, 90-91.

29 G.R. No. 161916, 20 January 2006, 479 SCRA 275, 283.

30 G.R. No. 120864, 8 October 2003, 413 SCRA 114, 125.

31 Adlawan v. Adlawan, supra note 29 at 283.

32 Take note, however, that this applies only with respect to co-owners as party-plaintiffs, by
virtue of Article 487 of the Civil Code. As party-defendants, the same co-owners
are all indispensable parties. (See Arcelona v. Court of Appeals, G.R. No. 102900, 2 October
1997, 280 SCRA 20, 39.

33 Rollo, pp. 53-54.

34 Id. at 369.
 35 See also Article 1425.

Art. 1425. When without the knowledge or against the will of the debtor, a third person pays
a debt which the obligor is not legally bound to pay because the action thereon has
prescribed, but the debtor later voluntarily reimburses the third person, the obligor cannot
recover what he has paid.

36 TSN, 11 March 1997.

93 SCRA 409

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 192486 November 21, 2012

RUPERTA CANO VDA. DE VIRAY and JESUS CARLO GERARD VIRAY, Petitioners,
vs.
SPOUSES JOSE USI and AMELITA USI, Respondents.

DECISION

VELASCO, JR., J.:

The Case

Petitioners have availed of Rule 45 to assail and nullify the Decision1 dated July 24, 2009, as
effectively reiterated in a Resolution2 of June 2, 2010, both rendered by the Court of Appeals (CA) in
CA-G.R. CV No. 90344, setting aside the Decision3 dated June 21, 2007 of the Regional Trial Court
(RTC), Branch 55 in Macabebe, Pampanga, in Civil Case No. 01-1118(M), an accion
publiciana/reivindicatoria, which respondents commenced with, but eventually dismissed by, that
court.

The Facts

At the core of the present controversy are several parcels of land which form part of what was once
Lot No. 733, Cad-305-D, Masantol Cadastre (Lot 733 hereinafter), registered in the name of Ellen P.
Mendoza (Mendoza), married to Moses Mendoza, under Transfer Certificate of Title No. (TCT) 141-
RP of the Registry of Deeds of Pampanga. With an area of 9,137 square meters, more or less, Lot
733 is located in Brgy. Bebe Anac, Masantol, Pampanga.

On April 28, 1986, Geodetic Engineer Abdon G. Fajardo prepared a subdivision plan4 (Fajardo Plan,
for short) for Lot 733, in which Lot 733 was divided into six (6) smaller parcels of differing size
dimensions, designated as: Lot 733-A, Lot 733-B, Lot 733-C, Lot 733-D, Lot 733-E, and Lot 733-F
consisting of 336, 465, 3,445, 683, 677 and 3,501 square meters, respectively.

The following day, April 29, 1986, Mendoza executed two separate deeds of absolute sale, the first,
transferring Lot 733-F to Jesus Carlo Gerard Viray (Jesus Viray),5 and the second deed conveying
Lot 733-A to spouses Avelino Viray and Margarita Masangcay (Sps. Viray).6 The names McDwight
Mendoza, Mendozas son, and one Ernesto Bustos appear in both notarized deeds as instrumental
witnesses. As of that time, the Fajardo Plan has not been officially approved by the Land
Management Bureau (LMB), formerly the Bureau of Lands. And at no time in the course of the
controversy did the spouses Viray and Jesus Viray, as purchasers of Lots 733-A and 733-F,
respectively, cause the annotations of the conveying deeds of sale on TCT 141-RP.

Herein petitioner, Ruperta Cano Vda. de Viray (Vda. de Viray), is the surviving spouse of Jesus
Viray, who died in April 1992.

As of April 29, 1986, the dispositions made on and/or the ownership profile of the subdivided lots
appearing under the Fajardo Plan are as follows:

Lot No. Area Conveyances by Mendoza

Lot 733-A 366 square meters Sold to Sps. Avelino and

Margarita Viray

Lot 733-B 465 square meters Unsold

Lot 733-C 3,445 square meters Unsold

Lot 733-D 683 square meters Proposed Road

Lot 733-E 677 square meters Unsold

Lot 733-F 3,501 square meters Sold to Jesus Viray

The aforementioned conveyances notwithstanding, Mendoza, Emerenciana M. Vda. de Mallari (Vda.

de Mallari) and respondent spouses Jose Usi and Amelita T. Usi (Sps. Usi or the Usis), as purported
co-owners of Lot 733, executed on August 20, 1990 a Subdivision Agreement,7 or the

1st subdivision agreement (1st SA). Pursuant to this agreement which adopted, as base of
reference, the LMB-approved subdivision plan prepared by Geodetic Engineer Alfeo S. Galang
(Galang Plan), Lot 733 was subdivided into three lots, i.e., Lots A to C, with the following area
coverage: Lots 733-A, 465 square meters, 733-B, 494 square meters, and 733-C, 6,838 square
meters. In its pertinent parts, the 1st SA reads:

That the above-parties are the sole and exclusive owners of a certain parcel of land situated in the
Bo. of Bebe Anac, Masantol, Pampanga, which is known as Lot No. 733 under TCT No. 141 R.P. of
the Registry of Deeds of Pampanga, under Psd-No. 03-10-025242;

That for the convenience of the parties hereto that the existing community of the said Lot be
terminated and their respective share be determined by proper adjudication;

That the parties hereto agreed to subdivided (sic) the above-mentioned property by Geodetic
Engineer Alfeo S. Galang, as per tracing cloth and blue print copy of plan Psd-03-025242 and
technical description duly approved by the Bureau of Lands, hereto Attached and made internal part
of this instrument in the following manner:

Lot 733-A - - - - - - - To Emerencia M. Vda. Mallari;

Lot 733-B - - - - - - - To Sps. Jose B. Usi and Amelita B. Usi;

Lot 733-C - - - - - - - To Ellen P. Mendoza8 (Emphasis added.)

TCT 141-RP would eventually be canceled and, in lieu thereof, three derivative titles were issued to
the following, as indicated: TCT 1584-RP for Lot 733-A to Mallari; TCT 1585-RP9 for Lot 733-B to
Sps. Usi; and TCT 1586-RP for Lot 733-C to Mendoza.

On April 5, 1991, Mendoza, McDwight P. Mendoza, Bismark P. Mendoza, Beverly P. Mendoza,

Georgenia P. Mendoza, Sps. Alejandro Lacap and Juanita U. Lacap, Sps. Nestor Coronel and
Herminia Balingit, Sps. Bacani and Martha Balingit, Sps. Ruperto and Josefina Jordan, and Sps.

Jose and Amelita Usi executed another Subdivision Agreement10 (2nd SA) covering and under which
the 8,148-sq. m. Lot 733-C was further subdivided into 13 smaller lots (Lot 733-C-1 to Lot 733-C-13
inclusive). The subdivision plan11 for Lot 733-C, as likewise prepared by Engr. Galang on October
13, 1990, was officially approved by the LMB on March 1, 1991.

The 2nd SA partly reads:

1. That we are the sole and exclusive undivided co-owners of a parcel of land situated at Barrio
Putat and Arabia, Bebe Anac, Masantol, Pampanga, identified as Lot No. 733-C of Psd-No. 03-
041669, containing an area of 8,148 sq. meters and covered by T.C.T. No. 1586 R.P. of the

Register of Deeds of Pampanga;

2. That it is for the benefit and best interest of the parties herein that the [sic] their co-ownership
relation over the above-mentioned parcel of land be terminated and their respective share over the
co-ownership be allotted [sic] to them;

Wherefore, by virtue of the foregoing premises, we have agreed, as we hereby agree to subdivide
our said parcel of land x x x.12 (Emphasis added.)

Consequent to the subdivision of Lot 733-C in line with the Galang Plan and its subsequent partition
and distribution to the respective allotees pursuant to the 2nd SA, the following individuals appeared
as owners of the subdivided units as indicated in the table below:

Lot No. Land Area Partitioned to:

Lot 733-C-1 200 square meters Sps. Jose and Amelita Usi

Lot 733-C-2 1,000 square meters Sps. Alejandro & Juanita Lacap

Lot 733-C-3 300 square meters Sps. Nestor & Herminia Coronel

Lot 733-C-4 500 square meters Sps. Nestor & Herminia Coronel
and Sps. Bacani & Martha
Balingit

Lot 733-C-5 400 square meters Sps. Ruperto & Josefina Jordan
 Lot 733-C-6 500 square meters Ellen, McDwight, Bismark,
Beverly and Georgenia
Mendoza

Lot 733-C-7 220 square meters Ellen, McDwight, Bismark,

Beverly and Georgenia
Mendoza

Lot 733-C-8 1,000 square meters Ellen, McDwight, Bismark,

Beverly and Georgenia
Mendoza

Lot 733-C-9 500 square meters Ellen, McDwight, Bismark,

Beverly and Georgenia
Mendoza

Lot 733-C-10 1,000 square meters Sps. Jose and Amelita Usi

Lot 733-C-11 668 square meters Ellen, McDwight, Bismark,

Beverly and Georgenia
Mendoza

Lot 733-C-12 550 square meters Ellen, McDwight, Bismark,

Beverly and Georgenia
Mendoza

[Lot 733-C-13] [1,310 square meters] [Allotted for a proposed road]

In net effect, the two subdivision agreements paved the way for the issuance, under the Sps. Usis
name, of TCT Nos. 1585-RP,13 2092-RP,14 and 2101-RP,15 covering Lots 733-B, 733-C-1 and 733-C-
10, respectively.

On the other hand, the subdivision of Lot 733, per the Galang Plan, and the two subdivision
agreements concluded based on that plan, virtually resulted in the loss of the identity of what under
the Fajardo Plan were Lot 733-A and Lot 733-F. The Sps. Viray and the late Jesus Viray, to recall,
purchased Lot 733-A and Lot 733-F, respectively, from Mendoza.

Then came the ocular inspection and survey16 conducted on Lot 733, as an undivided whole, by
Geodetic Engr. Angelito Nicdao of the LMB. Some highlights of his findings:

(a) Lot 733-A of the Fajardo Plan with an area of 336 square meters that Sps. Viray bought is
within Lot 733-B (Galang Plan) allotted under 1st SA to Sps. Jose and Amelita Usi; and

(b) Lot 733-F of the Fajardo Plan with an area of 3,501 square meters is almost identical to
the combined area of Lots 733-C-8 to 733-C-12 awarded to Ellen Mendoza and her
childrenMcDwight, Bismark, Beverly and Georgenia, and a portion (1,000 square meters)
of Lot 733-C-10 of the Galang Plan awarded to Sps. Jose and Amelita Usi.

As to be expected, the foregoing overlapping transactions involving the same property or portions
thereof spawned several suits and counter- suits featuring, in particular, herein petitioners and
respondents, viz:
(a) A suit for Annulment of Deed of Absolute Sale filed before the RTC, Branch 55 in Macabebe,
Pampanga, docketed as Civil Case No. 88-0265-M, in which the Usis and Mendoza, as plaintiffs,
assailed the validity and sought the annulment of the deed of absolute sale executed by Mendoza on
April 29, 1986 conveying Lot 733-A (Fajardo Plan) to defendants Sps. Viray.

(b) A similar suit for Annulment of Deed of Absolute Sale commenced by Mendoza against Jesus
Viray before RTC-Br. 55 in Macabebe, Pampanga, docketed as Civil Case No. 88-0283-M, entitled
Ellen P. Mendoza v. Jesus Carlo Gerard Viray, also seeking to nullify the April 29, 1986 Deed of
Absolute Sale conveying Lot 733-F (Fajardo Plan) to Jesus Viray and to declare the plaintiff as
entitled to its possession.

The adverted Civil Case Nos. 88-0265-M and 88-0283-M were jointly tried by RTC-Br. 55, which, on
August 1, 1989, rendered a Joint Decision17 finding for the Sps. Viray and Jesus Viray, as
defendants, and accordingly dismissing the separate complaints to annul the deeds of sale subject
of the joint cases.

On appeal, the CA, in CA-G.R. CV Nos. 24981-82, and later this Court, in its Decision of December
11, 1995, in G.R. No. 122287 in effect affirmed in toto the RTC dismissal decision.18 The Court, via
its Resolution of April 17, 1998, would eventually deny with finality19 Mendoza and the Usis motion
for reconsideration of the aforesaid December 11, 1995 Decision.

(c) A forcible entry case filed on November 19, 1991 by the late Jesus Viray against the Sps. Usi
before the Municipal Circuit Trial Court (MCTC) in Macabebe, Pampanga, docketed as Civil Case
No. 91 (13), entitled Jesus Carlo Gerard Viray v. Spouses Jose Usi and Emelita Tolentino, to eject
the Usis from Lot 733-F (Fajardo Plan).

On July 29, 1998, the MCTC rendered a Decision20 in favor of Jesus Viray, the dispositive portion of
which pertinently reads:

WHEREFORE, premises considered, judgment is hereby rendered for the plaintiff the late petitioner
Jesus Viray, and accordingly, the defendants Sps. Usi and any other persons claiming under them
are hereby ordered to vacate the subject premises, Lot 733-F embraced in T.C.T. No. 141-R.P.,
Register of Deeds Pampanga, and Lot 733-A, both situated at Bebe Anac, Masantol, Pampanga and
to remove at their own expense, all structures or improvements they built and introduced thereon.

Defendants are likewise sentenced to pay plaintiff the amount of THREE HUNDRED (P300.00)
PESOS per month from November 19, 1991, until they vacate the premises, as reasonable
compensation for the use and occupation thereof x x x.

xxxx

SO ORDERED.21

The Decision eventually became final and executory, the Usis having opted not to appeal it.

(d) A Petition for Annulment of the MCTC s July 29, 1998 Decision filed by the Sps. Usi before the
RTC, docketed as Civil Case No. 99-0914M, entitled Sps. Jose & Amelita Usi v. Hon. Pres. Judge
MCTC, Macabebe, Pampanga, the Court Sheriff, MCTC, Macabebe, Pampanga and

Ruperta Cano Vda. de Viray, which decision placed Jesus Virays widow, Ruperta, in possession of
Lot 733-F of the Fajardo Plan.
As may be noted, the spouses Usi, instead of appealing from the July 29, 1998 MCTC Decision in
Civil Case No. 91 (13), sought, after its finality, its annulment before the RTC. By Decision22 dated
June 29, 2000, the RTC dismissed the petition to annul. The Usis appeal to the CA, docketed as
CA-G.R. CV No. 67945, merited the same dismissal action.23 And finally, in G.R. No. 154538
(Spouses Jose and Amelita Usi v. Ruperta Cano Vda. de Viray), the Court denied, on February 12,
2003, Sps. Usis petition for review of the CAs Decision. The denial became final on April 8, 2003
and an Entry of Judgment24 issued in due course.

(e) A Petition for Accion Publiciana/ Reivindicatoria 25 instituted on December 12, 2001 by Sps. Usi
against the late Jesus Viray, as substituted by Vda. de Viray, et al., before the RTC in Macabebe,
Pampanga, docketed as Civil Case No. 01-1118(M), involving Lots 733-B, 733-C-1 and 733-C-10
(Galang Plan) covered by TCT Nos. 1585-RP, 2092-RP and 2101-RP.

The execution of the July 29, 1998 MCTC Decision in Civil Case No. 91 (13), as the Sps. Usi
asserted in their petition, would oust them from their own in fee simple lots even though the
dispositive portion of said forcible entry Decision mentioned Lots 733-A and 733-F (Fajardo Plan)
and not Lots 733-B, 733-C-1 and 733-C-10 (Galang Plan) which are registered in their names per
TCT Nos. 1585-RP, 2092-RP and 2101-RP.

In time, Vda. de Viray moved for the dismissal26 of these publiciana/ reivindicatoria actions on
grounds, among others, of litis pendentia and res judicata, on account of (1) the Sps. Usis appeal,
then pending before the CA, from the dismissal by the RTC of Civil Case No. 99-0914M;27 and (2)
the August 1, 1989 RTC Decision in Civil Case Nos. 88-0265-M and 88-0283-M, as effectively
affirmed by the CA, and finally by the Court in G.R. No. 122287. This motion to dismiss would,
however, be denied by the RTC through an Order28 of March 8, 2002, compelling Vda. de Viray to
file an answer,29 again invoking in defense the doctrine of res judicata. Sps. Usis Reply to
Answer30 contained an averment that their titles over the subject lots are the best evidence of their
ownership.

(f) An action for Cancellation of Titles or Surrender of Original Titles with Damages31 commenced by
Vda. de Viray, et al., against the Sps. Usi, Mendoza and eight others before the RTC, Branch 54 in
Macabebe, Pampanga, docketed as Civil Case No. (02)-1164(M), seeking the cancellation of TCT
Nos. 3614-R.P., 2099-R.P., 2101-R.P., 7502-R.P. and 2103-R.P. covering Lots 733-C-8 to 733-C-12
as subdivided under the 2nd SA of April 5, 1991 which taken together is basically identical to Lot
733-F (Fajardo Plan) sold to Jesus Viray.

To recap, the six (6) cases thus filed involving portions of Lot 733 and their status are:

Civil Case The Parties Action/Suit for Subject Lot(s) Disposition

No.

88-0265-M Sps. Usi v. Sps. Annulment of 733-A Decision in

Viray Deed of Absolute favor of Sps.
Sale (Fajardo Plan) Viray.
Decision is
now final.

88-0283-M Mendoza v. Annulment of 733-F Decision in

Jesus Viray Deed of Absolute favor of Sps.
Sale (Fajardo Plan) Viray.
 Subject of CA-
G.R. CV Nos.
24981-82
denied.
Subject of
G.R. No.
122287
petition
denied.

91 (13) Jesus Viray v. Forcible Entry 733-F Judgment in

Sps. Usi favor of Viray.
(Fajardo Plan) No appeal.

90-0914M Sps. Usi v. Vda. Petition for 733-F RTC

de Viray Annulment of dismissed
MCTC (Fajardo Plan) petition.

Decision in CC CA-G.R. CV
No. 91 (13) No. 67945
appeal
dismissed.
G.R. No.
154538
petition
denied.

(02)- Vda. de Viray v. Cancellation of Lots 733-C-8 Pending

1164(M) Mendoza, et al. Titles before before the
RTC, Br. 55, To 733-C-12 RTC.
Pampanga
(Lot 733-F
(Fajardo Plan)

01-1118(M) Sps. Usi v. Vda. Petition for 733-B, 733-C- Petition

de Viray dismissed.
Accion 1 and 733-C-
Publiciana and CA-G.R. CV
Reivindicatoria 10 (Galang No. 90344
before RTC, Br. Plan) reversed RTC
55, Pampanga Decision.
Subject of
instant case,
G.R. No.
192486

In sum, of the six (6) cases referred to above, the first four (4) have been terminated and the main
issue/s therein peremptorily resolved. To a precise point, the matter of the validity of the April 29,
1986 deeds of absolute sale conveying Lots 733-A and 733-F under the Fajardo Plan to Sps. Viray
and Vda. de Viray (vice Jesus Viray), respectively, is no longer a contentious issue by force of the
Courts Decision in G.R. No. 122287 effectively upholding the dismissal of the twin complaints to
nullify the deeds aforementioned. Likewise, the issue of who has the better possessory right
independent of title over the disputed lots has been resolved in favor of Vda. de Viray and the Sps.
Viray and against the Usis and veritably put to rest by virtue of the Courts final, affirmatory Decision
in G.R. No. 154538.

Only two cases of the original six revolving around Lot 733 remained unresolved. The first refers to
the petition for review of the decision of the CA in CA-G.R. CV No. 90344 which, in turn, is an appeal
from the decision of the RTC in Civil Case No. 01-1118(M), a Petition for Accion Publiciana/
Reivindicatoria and Damages, and the second is Civil Case No. (02)-1164(M) for Cancellation of
Titles or Surrender of Original Titles with Damages. The first case is subject of the present recourse,
while the second is, per records, still pending before the RTC, Branch 54 in Macabebe, Pampanga,
its resolution doubtless on hold in light of the instant petition.

In the meantime, the Sps. Usi have remained in possession of what in the Galang Plan are
designated as Lots 733-B, 733-C-1 and 733-C-10.

The Ruling of the RTC in Civil Case No. 01-1118(M)

As may be recalled, on June 21, 2007 in Civil Case No. 01-1118(M), the Macabebe, Pampanga RTC
rendered judgment dismissing the petition of the Sps. Usi32 for Accion Publiciana/Reivindicatoria. In
its dismissal action, the RTC held that the Sps. Usi failed to establish by preponderance of evidence
to support their claim of title, possession and ownership over the lots subject of their petition.

Following the denial of their motion for reconsideration per the RTCs Order33 of September 25,
2007, the Sps. Usi interposed an appeal before the CA, docketed as CA-G.R. CV No. 90344.

The Ruling of the CA

On July 24, 2009, the CA rendered the assailed decision, reversing and setting aside the appealed
June 21, 2007 RTC decision. The fallo of the CA decision reads:

WHEREFORE, the instant appeal is GRANTED and the assailed Decision of the Regional Trial
Court, REVERSED and SET ASIDE. Judgment is hereby rendered declaring as legal and valid, the
right of ownership of petitioner-appellant respondents herein spouses Jose Usi and Amelita T. Usi
over Lot Nos. 733-B, 733-C-1 and 733-C-10 covered by TCT Nos. 1585-R.P., 2092-R.P, and 2101-
R.P., respectively. Consequently, respondents-appellees herein petitioners are hereby ordered to
cease and desist from further committing acts of dispossession or from disturbing possession and
ownership of petitioners-appellants of the said property as herein described and specified. Claims for
damages, however, are hereby denied x x x.

SO ORDERED.

The CA predicated its ruling on the interplay of the following premises and findings: (a) the validity of
the two (2) duly notarized subdivision agreements, or the 1st SA and 2nd SA, which the LMB later
approved; (b) the subdivisions of Lot 733 on the basis of the Galang Plan actually partook the nature
of the partition of the shares of its co-owners; (c) what Mendoza conveyed through the April 29, 1986
deeds of absolute sale is only her ideal, abstract or pro-indiviso share of Lot 733 of which she had
full ownership, the conveyance or sale subject to the eventual delineation and partition of her share;
(d) Vda. de Viray has not shown that fraud surrounded the execution of the partition of Lot 733
through the subdivision agreements of August 20, 1990 and April 5, 1991; (e) the certificates of title
of the Sps. Usi constitute indefeasible proof of their ownership of Lots 733-B, 733-C-1 and 733-C-10;
(f) said certificate entitled the Sps. Usi to take possession thereof, the right to possess being merely
an attribute of ownership; (g) Vda. de Viray can only go after the partitioned shares of Mendoza in
Lot 733; and (h) the issue of possessory right has been mooted by the judgment of ownership in
favor of the Sps. Usi over Lots 733-B, 733-C-1 and 733-C-10.

Vda. de Viray sought but was denied reconsideration per the assailed June 2, 2010 CA Resolution.

Hence, We have this petition.

The Issue

WHETHER OR NOT THE COURT A QUO GRAVELY AND SERIOUSLY ERRED IN REVERSING
AND SETTING ASIDE THE DECISION OF THE RTC DISMISSING RESPONDENTS PETITION.34

The Courts Ruling

In the main, the issue tendered in this proceeding boils down to the question of whether the two (2)
subdivision agreements dated August 20, 1990 and April 5, 1991, respectively, partake of a bona
fide and legally binding partition contracts or arrangements among co-owners that validly effectuated
the transfer of the subject lots to respondent spouses Usi. Intertwined with the main issue is the
correlative question bearing on the validity of the deeds of absolute sale upon which the petitioners
hinged their claim of ownership and right of possession over said lots.

The Court rules in favor of petitioners.

Petitioners contend first off that the CA erred in its holding that the partitions of Lot 733 and later of
the divided unit Lot 733-C following the Galang Plan were actually the partitions of the pro-indiviso
shares of its co-owners effectively conveying to them their respective specific shares in the property.

We agree with petitioners.

First, the CAs holding aforestated is neither supported by, nor deducible from, the evidentiary facts
on record. He who alleges must prove it. Respondents have the burden to substantiate the factum
probandum of their complaint or the ultimate fact which is their claimed ownership over the lots in
question. They were, however, unsuccessful in adducing the factum probans or the evidentiary facts
by which the factum probandum or ultimate fact can be established. As shall be discussed shortly,
facts and circumstances obtain arguing against the claimed co-ownership over Lot 733.

Second, the earlier sale of Lot 733-A and Lot 733-F (Fajardo Plan) on April 29, 1986 was valid and
effective conveyances of said portions of Lot 733. The subsequent transfers to the Sps. Usi of
substantially the same portions of Lot 733 accomplished through the subdivision agreements
constitute in effect double sales of those portions. This aberration was brought to light by the results
of the adverted survey conducted sometime in June 22, 1999 of Engr. Nicdao of the LMB.

Third, even granting arguendo that the subject subdivision agreements were in fact but partitions of
the pro-indiviso shares of co-owners, said agreements would still be infirm, for the Sps. Viray and
Vda. de Viray (vice Jesus Viray) were excluded from the transaction. Like Vda. de Mallari, Sps. Viray
and Jesus Viray had validly acquired and, hence, owned portions of Lot 733 and are themselves co-
owners of Lot 733.

And last, over and above the foregoing considerations, the instant petition must be resolved in favor
of petitioners, the underlying reinvindicatory and possessory actions in Civil Case No. 01-1118 (M)
being barred by the application of the res judicata principle. What is more, the issue of superior
possessory rights of petitioner Vda. de Viray over Lot 733-F (Fajardo Plan) has been laid to rest with
finality in Civil Case No. 91 (13). Besides, Sps. Usis action to assail the final and executory July 29,
1998 MCTC Decision in Civil Case No. 91 (13) has been denied with finality in G.R. No. 154538.

The subdivision agreements not partition of co-owners

Partition, in general, is the separation, division, and assignment of a thing held in common by those
to whom it may belong.35

Contrary to the finding of the CA, the subdivision agreements forged by Mendoza and her alleged
co-owners were not for the partition of pro-indiviso shares of co-owners of Lot 733 but were actually
conveyances, disguised as partitions, of portions of Lot 733 specifically Lots 733-A and 733-B, and
portions of the subsequent subdivision of Lot 733-C.

Notably, after a full-blown trial in Civil Case No. 01-1118 (M) wherein the spouses Usi merged an
accion publiciana with an accion reinvindicatoria in one petition, the RTC held that Sps. Usi failed to
prove their case. However, in CA G.R. CV No. 90344, an appeal from said RTC decision, the CA,
while acknowledging the existence of the April 29, 1986 deeds of absolute sale, nonetheless
accorded validity to the August 20, 1990 and April 5, 1991 subdivision agreements. This is incorrect.
The CA held that the two (2) subdivision agreements, as notarized, enjoy the presumption of
regularity and effectuated the property transfers covered thereby, obviously glossing over the mala
fides attendant the execution of the two subdivision agreements. It cannot be overemphasized
enough that the two (2) deeds of absolute sale over portions of substantially the same parcel of land
antedated the subdivision agreements in question and their execution acknowledged too before a
notary public.

The appellate court found and so declared the subdivision agreements valid without so much as
explaining, let alone substantiating, its determination. The CA never elucidated how the Sps. Usi
became, in the first place co-owners, with Mendoza over Lot 733. On its face, TCT 141-RP covering
Lot 733 was in the name of spouses Ellen and Moses Mendoza only. Then too, the CA did not
explain how under the 2nd SA the Sps. Usi, the Sps. Lacap, the Sps. Balingit and the Sps. Jordan
became co-owners with Mendoza over Lot 733-C, when Mendoza, under the 1st SA, virtually
represented herself as the sole owner of Lot 733-C.

A scrutiny of the records with a fine-tooth comb likewise fails to substantially show a partition of Lot
733 by its co-owners. While the 1st and 2nd SAs purport to be deeds of partition by and among co-
owners of the lot/s covered thereby, partition as a fact is belied by the evidence extant on record.
Consider:

It is undisputed that TCT 141 RP covering Lot 733 was originally in the name of Ellen P. Mendoza
and husband, Moses.36 The joint decision of the RTC in Civil Case Nos. 88-0265 and 88-0283-M
narrated how the couple came to own Lot 733, thus: "Lot 733 was acquired by Spouses Moses
Mendoza and Ellen Mendoza and Spouses Pacifico Bustos and Maria Roman from Donato Lacap
for P5,000.00 (Exh. "1") in 1977. After two years, Spouses Pacifico Bustos and Maria Roman sold
one-half pro-indiviso portion of Lot 733 to spouses Moses Mendoza and Ellen Mendoza for
P6,000.00 (Exh. "2") and the acquisition cost of the whole lot is only P8,500.00 and x x x."37

Mendoza and the Sps. Usi, in their separate complaints for annulment of deeds of sale, docketed as
Civil Case Nos. 88-0265 and 88-0283-M of the Macabebe, Pampanga RTC, alleged that Moses
Mendoza authorized Atty. Venancio Viray to sell the subject lot for at least PhP 200 per square
meter, and that after his (Moses) death on April 5, 1986, Lot 733 was included in the proceedings
for the settlement of his estate docketed as Sp. Proc. Case No. 86-0040-M of the RTC, Branch 55 in
Macabebe, Pampanga, The events thus alleged by Mendoza and the Usis can be gleaned from the
final and executory joint decision in Civil Case Nos. 88-0265-M and 88-0283-M which petitioner Vda.
de Viray attached as Annex "5" in her Answer with Counterclaim38 to the Usis petition for accion
publicana/reivindicatoria. Said Joint Decision amply shows, in gist, the allegations39 of both the Sps.
Usi and Mendoza in Civil Case Nos. 88-0265-M and 88-0283-M asserting said facts. And these
assertions, made in their complaints, are judicial admissions under Sec. 4,40 Rule 129 of the Rules of
Court.

Unlike Vda. de Mallari who, per Vda. de Virays own admission, purchased the 416-square meter
portion of Lot 733 on February 14, 1984, thus constituting her (Vda. de Mallari) as co-owner of
Mendoza to the extent of said area purchased,41 the Sps. Usi have not been shown to be co-owners
with Mendoza. There is simply nothing in the records to demonstrate how the Sps. Usi became co-
owners of Lot 733 before or after the death of Moses Mendoza. Elsewise put, no evidence had been
adduced to show how the alleged interest of the Sps. Usi, as co-owner, came about, except for the
bare assertions in the 1st and 2nd SAs that they co-owned Lot 733 and Lot 733-C (Galang Plan).

It is fairly clear that Lot 733, even from the fact alone of its being registered under the name of the
late Moses Mendoza and Ellen Mendoza, formed part of the couples conjugal property at the time
Moses demise on April 5, 1986. Equally clear, too, is that Vda. de Mallari became a co-owner of Lot
733 by virtue of the purchase of its 416-square meter portion on February 14, 1984, during the
lifetime of Moses. Be that as it may and given that the Sps. Usi have not been shown to be co-
owners of Mendoza and Vda. de Mallari prior to the sale by Mendoza on April 29, 1986 of Lots 733-
A and 733-F (Fajardo Plan) to the Sps. Viray and Jesus Viray, respectively, then the execution of the
1st SA on August 20, 1990 could not have been a partition by co-owners of Lot 733. The same could
be said of the 2nd SA of April 5, 1991 vis--vis Lot 733-C, for the records are similarly completely
bereft of any evidence to show on how the purported participating co-owners, namely Sps. Usi, the
Sps. Lacap, the Sps. Balingit and the Sps. Jordan became co-owners with Mendoza and her
children, i.e., McDwight, Bismark, Beverly and Georgenia.

The April 29, 1986 Deeds of Absolute Sale

of Lot 733-A and Lot 733-F are Valid

It must be noted that the RTC, in its decision in Civil Case Nos. 88-0265-M and 88-0283-M, upheld
the validity of the separate April 29, 1986 deeds of absolute sale of Lots 733-A and 733-F (Fajardo
Plan). The combined area of Lot 733-A (366 sq. m.) and Lot 733-F (3,501) is less than one half of
the total area coverage of Lot 733 (9,137). The sale of one-half portion of the conjugal property is
valid as a sale. It cannot be gainsaid then that the deeds, executed as they were by the property
owner, were sufficient to transfer title and ownership over the portions covered thereby. And the
aforesaid RTC decision had become final and executory as far back as December 11, 1995 when
the Court, in G.R. No. 122287, in effect, affirmed the RTC decision. Likewise, the MCTCs decision
in Civil Case No. 91 (13) for forcible entry, declaring Vda. de Viray, as successor-in-interest of Jesus
Viray, as entitled to the physical possession, or possession de facto, of Lot 733-F (Fajardo Plan),
and the RTCs decision in Civil Case No. 99-0914M, disposing of the belated appeal of the MCTC
decision in the forcible entry case, have become final and executory on February 12, 2003 under
G.R. No. 154538.

In light of the convergence of the foregoing disposed-of cases, there can be no question as to the
ownership of the Sps. Viray and Vda. de Viray (vice Jesus Viray) over the specified and delineated
portions of Lot 733 which they purchased for value from Mendoza. And Mendoza, as vendor, was
bound to transfer the ownership of and deliver, as well as warrant, the thing which is the object of the
sale.42
In the instant case, the April 29, 1986 deeds of absolute sale indeed included the technical
description of that part of Lot 733 subject of the transactions, thus clearly identifying the portions
(Lots 733-A and 733-F under the Fajardo Plan) sold by Mendoza to the Sps. Viray and Vda. de Viray
(vice Jesus Viray). Hence, there can be no mistaking as to the identity of said lots.

The deeds in question were, to reiterate, not only valid but constitute prior conveyances of the
disputed portions of Lot 733. Accordingly, the subsequent conveyances in 1990 and 1991 to the
Sps. Usi through transfer contracts, styled as subdivision agreements, resulted, in effect, in a double
sale situation involving substantially the same portions of Lot 733.

The survey report of LMB surveyor, Engr. Nicdao, would support a finding of double sale. His report,
as earlier indicated, contained the following key findings: (1) Lot 733-A (Fajardo Plan) with an area of
336 square meters thus sold to the Sps. Viray is within Lot 733-B (Galang Plan), the part assigned to
Sps. Usi under the division; and (2) Lot 733-F (Fajardo Plan) with an area of 3,501 square meters is
almost identical to the combined area of Lots 733-C-8 to 733-C-12 awarded to Ellen Mendoza and
her children, McDwight, Bismark, Beverly and Georgenia, and a portion (1,000 square meters) of Lot
733-C-10 (Galang Plan) adjudicated to Sps. Usi.

A double sale situation, which would call, if necessary, the application of Art. 1544 of the Civil Code,
arises when, as jurisprudence teaches, the following requisites concur:

(a) The two (or more) sales transactions must constitute valid sales;

(b) The two (or more) sales transactions must pertain to exactly the same subject matter;

(c) The two (or more) buyers at odds over the rightful ownership of the subject matter must
each represent conflicting interests; and

(d) The two (or more) buyers at odds over the rightful ownership of the subject matter must
each have bought from the very same seller.43

From the facts, there is no valid sale from Mendoza to respondents Usi. The parties did not execute
a valid deed of sale conveying and transferring the lots in question to respondents. What they rely on
are two subdivision agreements which do not explicitly chronicle the transfer of said lots to them.
Under the 1st SA, all that can be read is the declaration that respondents, together with others, are
the "sole and exclusive owners" of the lots subject of said agreement. Per the 2nd SA, it simply
replicates the statement in the 1st SA that respondents are "sole and exclusive undivided co-
owners" with the other parties. While respondents may claim that the SAs of 1990 and 1991 are
convenient conveying vehicles Mendoza resorted to in disposing portions of Lot 733 under the
Galang Plan, the Court finds that said SAs are not valid legal conveyances of the subject lots due to
non-existent prestations pursuant to Article 1305 which prescribes "a meeting of minds between two
persons whereby one binds himself, with respect to the other, to give something or to render some
service." The third element of cause of the obligation which is established under Art. 1318 of the Civil
Code is likewise visibly absent from the two SAs. The transfer of title to respondents based on said
SAs is flawed, irregular, null and void. Thus the two SAs are not "sales transactions" nor "valid sales"
under Art. 1544 of the Civil Code and, hence, the first essential element under said legal provision
was not satisfied.1wphi1

Given the above perspective, the Sps. Viray and Vda. de Viray (vice Jesus Viray) have, as against
the Sps. Usi, superior rights over Lot 733-A and Lot 733-F (Fajardo Plan) or portions thereof.

Res Judicata Applies

Notably, the Sps. Viray and Vda. de Viray, after peremptorily prevailing in their cases supportive of
their claim of ownership and possession of Lots 733-A and 733-F (Fajardo Plan), cannot now be
deprived of their rights by the expediency of the Sps. Usi maintaining, as here, an accion publiciana
and/or accion reivindicatoria, two of the three kinds of actions to recover possession of real property.
The third, accion interdictal, comprises two distinct causes of action, namely forcible entry and
unlawful detainer,44 the issue in both cases being limited to the right to physical possession or
possession de facto, independently of any claim of ownership that either party may set forth in his or
her pleadings,45 albeit the court has the competence to delve into and resolve the issue of ownership
but only to address the issue of priority of possession.46 Both actions must be brought within one
year from the date of actual entry on the land, in case of forcible entry, and from the date of last
demand to vacate following the expiration of the right to possess, in case of unlawful detainer.47

When the dispossession or unlawful deprivation has lasted more than one year, one may avail
himself of accion publiciana to determine the better right of possession, or possession de jure, of
realty independently of title. On the other hand, accion reivindicatoria is an action to recover
ownership which necessarily includes recovery of possession.48

Now then, it is a hornbook rule that once a judgment becomes final and executory, it may no longer
be modified in any respect, even if the modification is meant to correct an erroneous conclusion of
fact or law, and regardless of whether the modification is attempted to be made by the court
rendering it or by the highest court of the land, as what remains to be done is the purely ministerial
enforcement or execution of the judgment.49 Any attempt to reopen a close case would offend the
principle of res judicata.

Res judicata embraces two concepts or principles, the first is designated as "bar by prior judgment"
and the other, "conclusiveness of judgment." Tiongson v. Court of Appeals50 describes the effects of
res judicata, as a bar by prior judgment, in the following manner:

There is no question that where as between the first case where the judgment is rendered and the
second where such judgment is invoked, there is identity of parties, subject matter and cause of
action, the judgment on the merits in the first case constitutes an absolute bar to the subsequent
action not only as to every matter which was offered and received to sustain or defeat the claim or
demand, but also as to any other admissible matter which might have been offered for that purpose
and to all matters that could have been adjudged in that case. x x x

Res judicata operates as bar by prior judgment if the following requisites concur: (1) the former
judgment or order must be final; (2) the judgment or order must be on the merits; (3) the decision
must have been rendered by a court having jurisdiction over the subject matter and the parties; and
(4) there must be, between the first and second action, identity of parties, of subject matter and of
causes of action.51 All the requisites are present in the instant case.

The better right to possess and the right of ownership of Vda. de Viray (vice Jose Viray) and the
Sps. Viray over the disputed parcels of land cannot, by force of the res judicata doctrine, be re-
litigated thru actions to recover possession and vindicate ownership filed by the Sps. Usi. The Court,
in G.R. No. 122287 (Ellen P. Mendoza and Jose and Amelita Usi v. Spouses Avelino Viray and
Margarita Masangcay and Jesus Carlo Gerard Viray), has in effect determined that the conveyances
and necessarily the transfers of ownership made to the Sps. Viray and Vda. de Viray (vice Jose
Viray) on April 29, 1986 were valid. This determination operates as a bar to the Usis reivindicatory
action to assail the April 29, 1986 conveyances and precludes the relitigation between the same
parties of the settled issue of ownership and possession arising from ownership. It may be that the
spouses Usi did not directly seek the recovery of title or possession of the property in question in
their action for annulment of the deed sale of sale. But it cannot be gainsaid that said action is
closely intertwined with the issue of ownership, and affects the title, of the lot covered by the deed.
The prevalent doctrine, to borrow from Fortune Motors, (Phils.), Inc. v. Court of Appeals,52 "is that an
action for the annulment or rescission of a sale of real property does not operate to efface the
fundamental and prime objective and nature of the case, which is to recover said real property."

And lest it be overlooked, the Court, in G.R. No. 154538 (Spouses Jose and Amelita Usi v. Ruperta
Cano Vda. de Viray), again in effect ruled with finality that petitioner Vda. de Viray has a better
possessory right over Lot 733-F (Fajardo Plan). Thus, the Courts decision in G.R. No. 122287
juxtaposed with that in G.R. No. 154538 would suffice to bar the Sps. Usis accion publiciana, as the
spouses had invoked all along their ownership over the disputed Lot 733-F as basis to defeat any
claim of the right of possessiOn. While an accion reivindicatoria is not barred by a judgment in an
ejectment case, such judgment constitutes a bar to the institution of the accion publiciana, because
the matter of possessioq between the same parties has become res judicata and cannot be delved
into in a new action.53

The doctrine of res judicata is a basic postulate to the end that controversies and issues once
decided on the merits by a court of competent jurisdiction shall remain in repose. It is simply
unfortunate that the RTC, in Civil Case No. 01-1118(M), did not apply the doctrine of res judicata to
the instant case, despite petitioners, as respondents below, had raised that ground both in their
motion to dismiss and answer to the underlying petition.

WHEREFORE, the instant petition is GRANTED. The assailed Decision dated July 24, 2009 and
Resolution dated June 2, 2010 of the Court of Appeals in CA-G.R. CV No. 90344 are REVERSED
and SET ASIDE. The Decision dated June 21, 2007 in Civil Case No. 01-1118(M) of the RTC,
Branch 55 in Macabebe, Pampanga is accordingly REINSTATED.

Costs against respondents.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

LUCAS P. BERSAMIN*
Associate Justice

ROBERTO A. ABAD JOSE PORTUGAL PEREZ**

Associate Justice Associate Justice

JOSE CATRAL MENDOZA

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.
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson

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.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

* Acting member per Special Order No. 1352-A dated November 7, 2012.

** Additional member per Special Order No. 1299 dated August 28, 2012.

1 Rollo, pp. 29-47. Penned by Associate Justice Mariano C. Del Castillo (now a member of
this Court) and concurred in by Associate Justices Monina Arevalo-Zefiarosa (now retired)
and Priscilla J. Baltazar-Padilla.

2
Id. at 17-18.

3 Records, pp. 593-602. Penned by Judge Ma. Jost-phine M. Rosario-Mercado.

4 Id. at 553.

5 Id. at 234.

6 Id. at 93.

7 Id. at 235.

8 Id.

9 Id. at 9.

10 Id. at 236.

11 Id. at 480.

12 Id.

13 Id. at 9.
14 Id. at 11a.

15 Id. at 23.

16Id. at 238-239; Survey Report dated June 28, 1999. A Sketch Plan was likewise done, id.
at 557.

The Survey Report presents the following findings:

1. That Lot 733-A with an area of 336 SQ. M. as appearing in the plan marked annex "B"
presented by the plaintiff [Vda. de Viray] is within Lot 733-B, Psd-03-025242 with an area of
494 SQ. M. and covered by TCT No. 1585-R.P. in the name of SPS. Jose B. Usi and Amelita
T. Usi.

2. That Lot 733-F with an area of 3,501 SQ. M. also appearing in the plan marked annex "B"
presented by the plaintiff is almost identical to Lot 733-C-8 to Lot 733-C-12 Psd 03-041699
which is presented by the defendant [Sps. Usi] and portion of Lot 733-C-10 with an area of
1,000 SQ. M. and covered by TCT No. 2101-R.P. is within Lot 733-F. (Attached sketch plan
and approved plan.)

3. And Lot 733-C-1 Psd-03-041699 covered by TCT No. 2092-R.P. is the residential area of
SPS. Jose B. Usi and Amelita T. Usi, as well as Lot 733-B Psd-03-024242, covered by TCT
No. 1585-R.P. is the area for commercial purposes and Lot 733-C-10 Psd-03-041699
covered by TCT No. 2101-R.P. used for hollow blocks making.

17 Id. at 158-173. Penned by Judge Reynaldo V. Roura.

18Id. at 174-182. Penned by Associate Justice Buenaventura J. Guerrero and concurred in

by Associate Justices Cesar D. Francisco and Bernardo Ll. Salas.

19 Id. at 183.

20 Id. at 17-23. Penned by Judge Valentino B. Nogoy.

21
Id. at 23.

22 Id. at 282-284. Penned by Judge Reynaldo V. Roura.

Id. at 285-290. Penned by Associate Justice Perlita J. Tria Tirona and concurred in by
23

Associate Justices Eubulo G. Verzola and Bernardo P. Abesamis.

24 Rollo, pp. 49-50.

25 Id. at 2-8, dated December 1, 2001.

26 Records, pp. 36-41, dated January 3, 2002.

27The petition instituted by the Usis before the RTC to annul the decision of the MCTCs in
Civil Case No. 91 (13), a suit for forcible entry.
28 Records, pp. 69-70.

29 Id. at 143-151, dated March 29, 2003.

30 Id. at 308-311, dated May 5, 2003.

31 Id. at 266-274, dated July 1, 2002.

32 Id. at 602.

33 Id. at 631-634.

34 Rollo, p. 8.

35Heirs of Cesar Marasigan v. Marasigan, G.R. No. 15678, March 14, 2008, 548 SCRA 409,
445; citing Noceda v. Court of Appeals, G.R. No. 119730, September 2, 1999, 313 SCRA
504, 517 and Cruz v. Court of Appeals, G.R. No. 122904, April 15, 2005, 456 SCRA 165,
171.

36Records, p. 165. The August 1, 1989 Joint Decision (Civil Case Nos. 88-0265-M and 88-
0283- M), p. 8 reads:

x x x. That Lot 733, Cad 305-D registered and described under TCT No. 141-R (Exhibit "E")
is admitted by both parties as a conjugal property of Spouses Moses G. Mendoza and Ellen
Mendoza (Exhs. "C" and "D" plaintiffs, "1" and "2" defendants) and the land described in
the Deeds of Absolute Sale (Exhs. "A" and "B") are portions of Lot 733. x x x (Emphasis
supplied.)

37 Id. at 166.

38 Id. at 143-151, dated March 29, 2003.

39Id. at 158-162. The August 1, 1989 Joint Decision in Civil Case Nos. 88-0265-M and 88-
0283- M shows:

JOINT DECISION

These are actions for Annulment of Deed of Sale with Damages filed by plaintiffs
spouses Jose and Amelita Usi and Ellen P. Mendoza against the Spouses Avelino
Viray and Margarita Masangcay in Civil Case No. 88-0265-M, and for Annulment of
Deed of Sale, Recovery of Possession with Damages filed by Ellen P. Mendoza
against Jesus Carlo Gerard Viray and spouses Venancio Viray and Cecilia Viray in
Civil Case No. 88-0283-M.

The plaintiffs in Civil Case No. 88-0265-M [Sps. Usi and Mendoza] claim that on April
29, 1986, the defendants made it appear that plaintiff, Ellen P. Mendoza sold to them
(defendants), a parcel of land, Lot No. 733-A being a portion of Lot 733, Cad-305-D,
situated in Bebe Anac, Masantol, Pampanga, in consideration of the sum of SIX
THOUSAND (P6,000.00) PESOS by way of Deed of Absolute Sale executed before
Notary Public Venancio Viray of Masantol, Pampanga and registered in his Notarial
Book as Doc. No. 269; Page No. 54; Book No. I; series of 1986. Plaintiff Ellen
Mendoza further alleged that she has no knowledge or information whatsoever about
the due execution of the Deed of Sale aforementioned and does not remember
having executed any contract with the defendants nor seen them; that the signature
appearing in the document is a forged and falsified signature and if ever that is her
signature it was placed there thru fraud, trick and other device, but certainly not
intended for the transfer or sale of her conjugal share in the estate of her late
husband Moses Mendoza for the reason that the estate has not been settled and
partitioned by her co-heirs, the settlement of which is still pending before this Court;
that said Deed of Sale is now being made as basis for the possession in an Unlawful
Detainer in the Municipal Circuit Trial Court of Macabebe-Masantol, Pampanga; that
Atty. Venancio Viray before whom the alleged Deed of Absolute Sale was executed
and notarized is related to the defendants in the first degree and that prior to the
death of Moses Mendoza, (previous owner of the lot in question), Atty. Viray was
their family lawyer and was appointed by the deceased Moses Mendoza as an
exclusive agent to sell the property described as Lot No. 733 Cad-305-D of which the
land in question is a portion, for a price not less than P200.00 per square meter; that
to give more proofs of deception and forgery committed by defendants and Notary
Public Atty.

Venancio Viray at the time when he was still the family lawyer, the Res. Cert. No.
113574 issued on April 28, 1986 at Masantol, Pampanga allegedly exhibited by
plaintiff Ellen P. Mendoza is likewise a forgery and a falsified residence certificate
because the real and true residence certificate of Ellen Mendoza was taken in San
Fernando, Pampanga; that plaintiff spouses Jose Usi and Amelita Usi and Atty.
Venancio Viray executed and entered into a temporary deed of sale respecting a
portion of said lot in question on March 25, 1984, when Atty. Venancio Viray
representing himself to the spouses Jose Usi and Amelita Usi to be with power and
authority to sell said lot from said owner Moses Mendoza, accepted by way of down
payment from said plaintiffs-spouses the sum of P30,000.00 at P500.00 per square
meter of that said portion of the said parcel of land with an area of 308 square meters
and from the time when the owner Moses Mendoza died on April 5, 1986 up to the
present, the corresponding Deed of Sale in favor of the plaintiffs have [sic] not been
executed by Atty. Venancio Viray nor returned the down payment of P30,000.00; that
after the execution of the temporary deed (Annex "B"), plaintiffs constructed their
hardware store on the said lot subject of the deed; on November 28, 1985, Atty.
Venancio Viray filed an Unlawful Detainer case before the MCTC of Macabebe-
Masantol against plaintiffs-spouses Jose Usi and Amelita Usi which case was
dismissed by Hon. Nicanor D. Guevara, Presiding Judge of said Court on October
22, 1986; that plaintiff Ellen Mendoza has executed a Deed of Absolute Sale in favor
of plaintiff spouses Jose and Amelita Usi pertaining to the lot in question and
confirmation of the said deed of sale is still pending approval by this Court.

The plaintiff [sic] prayed that the subject Deed of Absolute Sale be declared null and
void and the defendants be ordered to pay them P20,000.00 as moral damages and
P10,000.00 as exemplary damages, plus P10,000.00 attorneys fees and to pay the
costs of this suit.

xxxx

The plaintiff in Civil Case No. 88-0283-M [Mendoza] alleges that defendant Jesus
Gerard Carlo Viray is a minor and is being named defendant in said complaint
through his parents Vanancio M. Viray and Cecilia N. Viray, husband and wife,
Filipinos and residents of Poblacion, Masantol, Pampanga; that one of the claims
 filed against the estate of Moses Mendoza in Sp. Proc. Case No. 86-0040(M), is the
claim of defendants by virtue of a Deed of Absolute Sale allegedly executed by the
plaintiff on April 29, 1986 at Masantol, Pampanga, in favor of the defendant Jesus
Carlo Gerard N. Viray for the sum ofTwenty-Five Thousant (P25,000.00) Pesos over
a parcel of land being a portion of Lot No. 733, Cad-305-D, situated in Bebe Anac,
Masantol, Pampanga, which is a portion of her conjugal share in said lot and
executed before Notary Public Venancio Viray (his natural father); that plaintiff has
no knowledge whatsoever about the execution of the deed of sale aforementioned
and does not remember having executed any contract of sale with the defendant for
the sale of the said parcel of land, which belongs to the intestate estate of her
deceased husband, Moses Mendoza, the settlement of which is still pending; that the
signature of Ellen Mendoza on the alleged deed of sale is a forgery and falsified
signature and if ever that is the signature of plaintiff it was never intended for a deed
of absolute sale of the lot described in the document or was placed in said document
thru fraud, trick and other device, but certainly not intended for the transfer or sale of
her conjugal share in the estate; that Atty. Venancio Viray before whom the alleged
deed of absolute sale was executed and notarized is the natural father of the alleged
vendee and prior to the death of Moses G. Mendoza previous owner of the lot
allegedly sold, Atty. Viray was their family lawyer and was appointed by the
deceased Moses Mendoza as exclusive agent to sell Lot No. 733 for a price not less
than P200.00 per square meter and the over price shall be his commission; that the
alleged consideration of P25,000.00 is simulated and fictitious and without any
consideration, for the vendee-defendant never paid plaintiff-vendor any amount; that
the residence certificate allegedly exhibited by plaintiff before Notary Public Atty.
Venancio Viray, who at the time it was allegedly executed was their family lawyer, is
likewise a forgery and a fictitious residence certificate because her (plaintiffs) true
residence certificate for 1986 was taken by her in San Fernando, Pampanga which
was duly executed and signed by her, not the residence certificate No. 11305754
issued on April 28, 1986 at Masantol, Pampanga which is not signed and incomplete;
that the forgery and deception was perpetrated by Atty. Viray as a father and Notary
Public who notarized the deed of sale by making it appear that his son-vendee is of
legal age when in truth he is still a minor and, therefore, cannot yet give consent to a
contract of sale which is a bilateral contract, therefore, there being no consent on
both the vendee and the vendor, the deed of absolute sale allegedly executed by the
plaintiff and defendant Jesus Carlo Gerard Nunga Viray is null and void from the
beginning; that when the deed of absolute sale was allegedly executed on April 29,
1986, the estate of Moses G. Mendoza has not yet been settled and still pending
settlement before this Court; that notwithstanding repeated demands, the defendants
failed and refused and still fail and refuse to return the possession of the land subject
of the complaint x x x.

The plaintiff prayed that the subject Deed of Absolute Sale dated April 29, 1986 be
declared null and void and the defendants be ordered to vacate the land in question
and declare possession thereof to the plaintiff, and to pay the plaintiff such unpaid
rental for the use and occupation of the subject land in the amount of P1,500.00 per
month, plus actual damage incurred by virtue of the excavation of the land in the
amount of P10,000.00; P20,000.00 as moral damages; P5,000.00 as exemplary
damages and P10,000.00 as attorneys fees.

40SEC. 4. Judicial admissions. An admission, verbal or written, made by a party in the

course of the proceedings in the same case, does not require proof. The admission may be
contradicted only by showing that it was made through palpable mistake or that no such
admission was made.
 41Records, p. 166. The August 1, 1989 Joint Decision (Civil Case Nos. 88-0265-M and 88-
0283-M), p. 9 reads:

x x x Subsequently, on February 14, 1984, spouses Moses Mendoza and Ellen

Mendoza sold a portion (416 square meters) to Emerencia M. Vda. de Mallari and
the corresponding Deed of Sale was registered with the Office of the Register of
Deeds of Pampanga and annotated at the face of the title (TCT No. 141-R).
Therefore, Emerencia Vda. de Mallari is a co-owner to the extent of 416 square
meters. (Emphasis supplied.)

42Asset Privatization Trust v. T.J. Enterprises, G.R. No. 167195, May 8, 2009, 587 SCRA
481, 488; citing CIVIL CODE, Art. 1495.

43Mactan-Cebu International Airport Authority v. Tirol, G.R. No. 171535, June 5, 2009, 588
SCRA 635, 644; citing Cheng v. Genato, G.R. No. 129760, December 29, 1998, 300 SCRA
722, 739-740.

44 Javier v. Veridiano II, G.R. No. 48050, October 10, 1994, 237 SCRA 565, 572.

45 Presco v. Court of Appeals, G.R. No. 82215, December 10, 1990, 192 SCRA 232, 238.

46 De Luna v. Court of Appeals, G.R. No. 94490, August 6, 1992, 212 SCRA 276, 279.

47 Javier v. Veridiano II, supra note 44.

Bokingo v. Court of Appeals, G.R. No. 161739, May 4, 2006, 489 SCRA 521, 532; citing
48

Ganila v. Court of Appeals, G.R. No. 150755, June 28, 2005, 461 SCRA 435, 445.

49 Vios v. Pantangco, Jr., G.R. No. 163103, February 6, 2009, 578 SCRA 129, 143-144;
citing Coca-Cola Bottlers Philippines, Inc., Sales Force Union-PTGWO-BALAIS v. Coca-Cola
Bottlers Philippines, Inc., G.R. No. 155651, July 28, 2005, 464 SCRA 507, 513-514. See also
Dacanay v. Yrastorza, Sr., G.R. No. 150664, September 3, 2009, 598 SCRA 20, 25; citing
Rams Studio and Photographic Equipment, Inc. v. Court of Appeals, G.R. No. 134888,
December 1, 2000, 346 SCRA 691; and Obieta v. Cheok, G.R. No. 170072, September 3,
2009, 598 SCRA 86, 91; citing Coloso v. Garilao, G.R. No. 129165, October 30, 2006, 506
SCRA 25, 50.

50 No. L-35059, February 27, 1973, 49 SCRA 429, 434-435.

51Agustin v. Delos Santos, G.R. No. 168139, January 20, 2009, 576 SCRA 576, 586
(citations omitted).

52 G.R. No. 76431, October 16, 1989, 178 SCRA 564, 568.

2 Tolentino, CIVIL CODE OF THE PHILIPPINES 227; citing Del Rosyrio v. Celosia, 26
53

Phil. 404 (1913).

The Lawphil Project - Arellano Law Foundation

 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-45262 July 23, 1990

RUPERTO REYES and REYNALDO C. SAN JUAN, in his capacity as Special

Administrator, petitioners,
vs.
HON. LORENZO R. MOSQUEDA, Judge of CFI, Pampanga (Branch VII), and URSULA D.
PASCUAL,respondents.

G.R. No. L-45394 July 23, 1990

PEDRO DALUSONG, petitioner,

vs
HON. LORENZO R. MOSQUEDA, JUDGE, BRANCH VII, COURT OF FIRST INSTANCE OF
PAMPANGA, and URSULA D. PASCUAL, respondents.

G.R. Nos. 73241-42 July 23, 1990

OFELIA D. PARUNGAO and ROSARIO DUNCIL, petitioners,

vs.
THE HON. INTERMEDIATE APPELLATE COURT, (Third Civil Cases Division), BENJAMIN
P. REYES and OSCAR REYES, respondents.

GUTIERREZ, JR., J.:

The instant petitions have been consolidated as they arose from the same facts and involve similar issues.
Dr. Emilio Pascual died intestate and without issue on November 18,1972. He was survived by his sister,
Ursula Pascual and the children of his late sisters as follows: (1) Maria Pascual Reyes- Ruperto Reyes and
Jose Reyes; (2) Ines Pascual Reyes-Jose P. Reyes, Benito Reyes, and Manna Reyes Manalastas; (3)
Josefa Pascual Reyes-Augusto Reyes and Benjamin Reyes; and (4) Escolastica Pascual Dalusong (half-
blood Pedro Dalusong.

On December 3, 1973, the heirs of Dr. Pascual filed Special Proceedings No. 73-30-M in the then Court
of First Instance of Pampanga for the administration of his estate. Atty. Marcela Macapagal, Clerk of
Court of Branch VII was appointed special administratrix. Macapagal was, however, replaced by
Reynaldo San Juan.
On February 12, 1976, Ursula Pascual filed a motion to exclude some properties from the inventory of
Pascual's estate and to deliver the titles thereto to her. Ursula alleged that Dr. Pascual during his lifetime
or on November 2, 1966 executed a "Donation Mortis Causa" in her favor covering properties which are
included in the estate of Dr. Pascual (subject of Special Proceedings No. 73-30-M) and therefore should
be excluded from the inventory.

On August 1, 1976; the trial court issued an order excluding from the inventory of the estate the
properties donated to Ursula, to wit:

WHEREFORE, in view of all the foregoing discussion, let the properties listed in
paragraph 2 of the motion of February 12, 1976 filed by Ursula D. Pascual thru counsel
be, as it is hereby ordered, excluded from the inventory of the estate of the deceased Dr.
Emilio D. Pascual, without prejudice to its final determination in a separate action.
Special Administrator Reynaldo San Juan is hereby ordered to return to Court the custody
of the corresponding certificates of titles of these properties, until the issue of ownership
is finally determined in a separate action. (G.R. No. 45262, pp. 23-24)

The Order is now the subject of G.R. Nos. 45262 and 45394. On January 5, 1977, we issued a temporary
restraining order enjoining the trial court from enforcing the August 1, 1976 Order.

Among the properties included in the "donation mortis causa" in favor of Ursula was Lot 24, Block No.
15 of the subdivision plan Psd-3231, located at 1109-1111 R. Papa St., Tondo, Manila as evidenced by
Transfer Certificate of Title No. 17854. The records show that on May 15, 1969, Emilio Pascual executed
a deed of donation of real property inter vivos over the abovementioned lot in Manila in favor of Ofelia
D. Parungao, petitioner in G.R. Nos. 73241-42 a minor with her mother, Rosario Duncil, accepting the
gift and donation for and in her behalf. When Parungao reached the age of majority or on December 20,
1976, she tried to have the donation registered. However, she found out that the certificate of title was
missing from where it was supposed to be kept, prompting her to file a petition for reconstitution of title
with the Court of First Instance of Manila. The petition was granted in October 1977. Parungao registered
the deed of donation with the Register of Deeds of Manila who cancelled Transfer Certificate of Title No.
17854 and issued in lieu thereof Transfer Certificate of Title No. 129092 in the name of Ofelia Parungao.
She then filed a motion for exclusion in Special Proceedings No. 73-30-M.

In the meantime, on September 23, 1976, Ursula Pascual executed a deed of absolute sale over the Tondo
property in favor of Benjamin, Oscar, Jose and Emmanuel, all surnamed Reyes.

On May 2, 1978, Benjamin Reyes, private respondent in G.R. Nos. 73241-42 filed a complaint for
declaration of nullity of Transfer Certificate of Title No. 129092, Register of Deeds of Manila and/or
reconveyance of deed of title against Ofelia Parungao and Rosario Duncil, with the then Court of First
Instance of Manila. The case was docketed as Civil Case No. 115164.

In their answer with compulsory counterclaim Parungao and Duncil, denied Reyes' assertion of ownership
over the Tondo property. On November 6, 1978, Ofelia Parungao filed a complaint for recovery of
possession over the Tondo property against Benjamin Reyes and his nephew Oscar Reyes with the Court
of First Instance of Manila. The case was docketed as Civil Case No. 119359. In her complaint, Parungao
also alleged that as early as 1973, the defendants occupied two (2) doors of the apartment situated at the
Tondo property by mere tolerance of the previous owner, Dr. Emilio Pascual, and later by her until April
8, 1978 when she formally demanded that the defendants vacate the premises. Parungao prayed that the
defendants be evicted from the premises.
The two cases were consolidated. On June 3, 1982, the then Court of First Instance, Branch 8 rendered a
joint decision, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered: In Civil Case No. 115164

1) Declaring TCT No. 129092 in the name of Ofelia Parungao null and void; and
ordering the Register of Deeds of Manila to cancel said title and to restore, in lieu thereof,
TCT No. 17854 in the name of Emilio D. Pascual;

2) Ordering Ofelia D. Parungao to pay plaintiff Benjamin P. Reyes the sum of Two
Thousand (P2,000.00) Pesos, as and for attorney's fees; and to pay the costs of suit
including all fees which the Register of Deeds may prescribe for the full implementation
of this decision. For lack of merit, the counterclaim is dismissed.

In Civil Case No. 119359

1) Dismissing the complaint for want of merit; and

2) On the counterclaim, ordering Ofelia Parungao to pay defendant defendants the sum of
Two Thousand (P2,000.00) Pesos as and for attorney's fees.'

Parungao appealed the decision to the then Intermediate Appellate Court. The decision was, however,
affirmed, with costs against the appellant.

The Intermediate Appellate Court decision is now the subject matter in G.R. Nos. 73241-42.

On January 29, 1986, we issued a minute resolution denying the above petition for lack of merit. The
resolution became final and executory on March 10, 1986 and on this same day the entry of judgment was
effected. The entry of judgment was however set aside in the resolution dated January 19, 1987 on the
ground that the January 29, 1986 resolution was not received by the petitioners' counsel of record. The
petitioner was granted leave to file a motion for reconsideration of the January 29, 1986 resolution.

The motion for reconsideration is now before us for resolution petition.

The issues raised in these petitions are two-fold: (1) In G.R. No. L-45394, petitioner Pedro Dalusong
questions the jurisdiction of the probate court to exclude the properties donated to Ursula Pascual in its
Order dated August 1, 1976, and (2) In G.R. No. L-45262 and G.R. Nos. 73241-42 Ruperto Reyes,
Reynaldo C. San Juan, in his capacity as special administrator of the estate of Emilio Pascual (petitioner
in G.R. No.
L- 45262), Ofelia Parungao and Rosario Duncil (petitioners in G.R. Nos. 7324142) question the appellate
court's finding that the "Donation Mortis Causa" executed by Emilio Pascual in favor of his sister Ursula
Pascual was actually a Donation Inter Vivos.

We first discuss the issue on jurisdiction. The questioned August 1, 1976 order of the then Court of First
Instance of Pampanga in S.P. Proc. No. 73-30-M categorically stated that the exclusion from the
inventory of the estate of the deceased Dr. Emilio D. Pascual was "without prejudice to its final
determination in a separate action." The provisional character of the exclusion of the contested properties
in the inventory as stressed in the order is within the jurisdiction of the probate court. This was stressed in
the case of Cuizon v. Ramolete (129 SCRA 495 [1984]) which we cited in the case of Morales v. Court of
First Instance of Cavite, Branch V (146 SCRA 373 [1986]):

It is well-settled rule that a probate court or one in charge of proceedings whether testate
or intestate cannot adjudicate or determine title to properties claimed to be a part of the
estate and which are equally claimed to belong to outside parties. All that the said court
could do as regards said properties is to determine whether they should or should not be
included in the inventory or list of properties to be administered by the administrator. If
there is no dispute, well and good; but if there is, then the parties, the administrator, and
the opposing parties have to resort to an ordinary action for a final determination of the
conflicting claims of title because the probate court cannot do so (Mallari v. Mallari, 92
Phil. 694; Baquial v. Amihan, 92 Phil. 501).itc-asl

Similarly, in Valero Vda. de Rodriguez v. Court of Appeals, (91 SCRA 540) we held that
for the purpose of determining whether a certain property should or should not be
included in the inventory, the probate court may pass upon the title thereto but such
determination is not conclusive and is subject to the final decision in a separate action
regarding ownership which may be instituted by the parties (3 Moran's Comments on the
Rules of Court, 1970 Edition, pages 448449 and 473; Lachenal v. Salas,
L-42257, June 14, 1976, 71 SCRA 262, 266).

On the second issue, it may be noted that the Court of Appeals did not pass upon the authenticity of the
1969 donation to Parungao because of its finding that the 1966 donation to Pascual was inter vivos. The
petitioners do not press the authenticity of the 1969 donation as their challenge centers on whether or not
the 1966 donation was inter vivos. However, the trial court has a lengthy discussion reflecting adversely
on the authenticity of the 1969 donation to Parungao.

The petitioners assert that the 1966 donation was null and void since it was not executed with the
formalities of a will. Therefore, the petitioners in G.R. No. L-45262 insist that the donated properties
should revert to the estate of Emilio Pascual while the petitioners in G.R. Nos. 73241-42 insist that the
donation of real property inter vivos in favor of Ofelia Parungao be given effect.

The subject deed of donation titled "DONATION MORTIS CAUSA" duly notarized by a certain
Cornelio M. Sigua states:

That Dr. Emilio D. Pascual, Filipino, single, of age and resident of Apalit, Pampanga,
hereinafter called the DONOR and Ursula D. Pascual, Filipino, single, also of age,
resident of and with postal address at Apalit, Pampanga, hereinafter called the DONEE,
have agreed, as they do hereby agree, to the following, to wit:

That the said DONOR, Dr. Emilio D. Pascual, for and in consideration of the love and
affection which he has and bears unto the said DONEE, as also for the personal services
rendered by the said DONEE to the said DONOR, does hereby by these presents
voluntarily GIVE, GRANT, and DONATE MORTIS CAUSA unto the said DONEE
URSULA D. PASCUAL, her heirs and assigns, all of my rights, title and interest, in and
to the following parcels of land with all the improvements thereon, situated in the
Municipality of Apalit, Pampanga, and more particularly described and Identified as
follows:

xxx xxx xxx

 (Enumerated herein are 41 parcels of land)

Also included in this DONATION MORTIS CAUSA are all personal properties of the
DONOR in the form of cash money or bank deposits and insurance in his favor, and his
real properties situated in other towns of Pampanga, such as San Simon, and in the
province of Rizal, San Francisco del Monte and in the City of Manila.

That the said donor has reserved for himself sufficient property to maintain him for life;
and that the said DONEE does hereby ACCEPT and RECEIVE this DONATION
MORTIS CAUSA and further does express his appreciation and gratefulness for the
generosity of said DONOR; (Rollo of G.R. No. L-45262, pp. 12-16)

xxx xxx xxx

Considering the provisions of the DONATION MORTIS CAUSA the appellate court ruled that the deed
of donation was actually a donation inter vivos although denominated as DONATION MORTIS CAUSA.

It is, now a settled rule that the title given to a deed of donation is not the determinative factor which
makes the donation "inter vivos" or "mortis causa" As early as the case of Laureta v. Manta, et al., (44
Phil. 668 [1928]) this Court ruled that the dispositions in a deed of donation-whether "inter vivos" or
"mortis causa" do not depend on the title or term used in the deed of donation but on the provisions stated
in such deed. This Court explained inConcepcion v. Concepcion (91 Phil. 823 [1952])

...But, it is a rule consistently followed by the courts that it is the body of the document of
donation and the statements contained therein, and not the title that should be considered
in ascertaining the intention of the donor. Here, the donation is entitled and called
donacion onerosa mortis causa. From the body, however, we find that the donation was
of a nature remunerative rather than onerous. It was for past services rendered, services
which may not be considered as a debt to be paid by the donee but services rendered to
her freely and in goodwill. The donation instead of being onerous or for a valuable
consideration, as in payment of a legal obligation, was more of remuneratory or
compensatory nature, besides being partly motivated by affection.

We should not give too much importance or significance to or be guided by the use of the
phrase 'mortis causa in a donation and thereby to conclude that the donation is not one of
inter vivos. In the case of De Guzman et al. v. Ibea et al. (67 Phil. 633), this Court
through Mr. Chief Justice Avancena said that if a donation by its terms is inter vivos, this
character is not altered by the fact that the donor styles it mortis causa.

In the case of Laureta v. Mata, et al. (44 Phil. 668), the court held that the donation
involved was inter vivos. There, the donor Severa Magno y Laureta gave the properties
involved as

... a reward for the services which he is rendering me, and as a token of my affection
toward him and of the fact that he stands high in my estimation, I hereby donate 'mortis
causa to said youth all the properties described as follows:

xxx xxx xxx

 I also declare that it is the condition of this donation that the donee cannot take
possession of the properties donated before the death of the donor, and in the event of her
death the said donee shall be under obligation to cause a mass to be held annually as a
suffrage in behalf of my sold, and also to defray the expenses of my burial and funerals.'

It will be observed that the present case and that of Laureta above cited are similar in that
in both cases the donation was being made as a reward for services rendered and being
rendered, and as a token of affection for the donee; the phrase 'mortis causa was used; the
donee to take possession of the property donated only after the death of the donor; the
donee was under obligation to defray the expenses incident to the celebration of the
anniversary of the donor's death, including church fees. The donation in both cases were
duly accepted. In said case of Laureta this Court held that the donation was in praesenti
and not a gift in futuro.

In the later case of Bonsato et al. v. Court of appeals, et al. (95 Phil. 481 [1954]) this Court, distinguished
the characteristics of a donation inter vivos and "mortis causa" in this wise:

Did the late Domingo Bonsato, make donations inter vivos or dispositions post mortem in
favor of the petitioners herein? If the latter, then the documents should reveal any or all
of the following characteristics:

(1) Convey no title or ownership to the transferee before the death of the transferor; or,
what amounts to the same thing, that the transferor should retain the ownership (fun or
naked) and control of the property while alive (Vidal v. Posadas, 58 Phil., 108; Guzman
v. Ibea 67 Phil., 633);

(2) That before his death, the transfer should be revocable by the transferor at will, ad
nutum; but revocability may be provided for indirectly by means of a reserved power in
the donor to dispose of the properties conveyed (Bautista v. Sabiniano, G.R. No. L- 4326,
November 18, 1952);

(3) That the transfer should be void if the transferor should survive the transferee.

These principles were repeated in the case of Castro v. Court of Appeals (27 SCRA 1076 [1969]), to wit:

Whether a donation is inter vivos or mortis causa depends upon the nature of the
disposition made. 'Did the donor intend to transfer the ownership of the property donated
upon the execution of the donation? If this is so, as reflected from the provisions
contained in the donation, then it is inter vivos; otherwise, it is merely mortis causa, or
made to take effect after death.' (Howard v. Padilla and Court of Appeals, G.R. No. L-
7064 and L-7098, April 22, 1955.

Applying the above principles to the instant petitions, there is no doubt that the so-called DONATION
MORTIS CAUSA is really a donation inter vivos. The donation was executed by Dr. Pascual in favor of
his sister Ursula Pascual out of love and affection as well as a recognition of the personal services
rendered by the donee to the donor. The transfer of ownership over the properties donated to the donee
was immediate and independent of the death of the donor. The provision as regards the reservation of
properties for the donor's subsistence in relation to the other provisions of the deed of donation confirms
the intention of the donor to give naked ownership of the properties to the donee immediately after the
execution of the deed of donation.
With these findings we find no need to discuss the other arguments raised by the petitioners.

WHEREFORE, this Court hereby renders judgment as follows:

1) In G.R. Nos. 45262 and 45394 the petitions are DENIED. The Temporary Restraining Order issued on
January 5, 1977 is hereby LIFTED; and

2) In G.R. Nos. 73241-42, the motion for reconsideration is DENIED. This DENIAL is FINAL.

SO ORDERED.

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.

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 pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by
his second wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis,
Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr.,
Maria Cristina Bellis and Miriam Palma Bellis.

On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all
taxes, obligations, and expenses of administration are paid for, his distributable estate should be divided,
in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b)
P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma
Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the remainder shall
go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A.
Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E.
Bellis, in equal shares.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.

Footnotes

1
He later filed a motion praying that as a legal heir he be included in this case as one of the
oppositors-appellants; to file or adopt the opposition of his sisters to the project of partition; to
submit his brief after paying his proportionate share in the expenses incurred in the printing of the
record on appeal; or to allow him to adopt the briefs filed by his sisters but this Court resolved
to deny the motion.

2
San Antonio, Texas was his legal residence.

3
Lim vs. Collector, 36 Phil. 472; In re Testate Estate of Suntay, 95 Phil. 500.

Republic of the Philippines

SUPREME COURT
Manila

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 pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by
his second wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis,
Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr.,
Maria Cristina Bellis and Miriam Palma Bellis.

On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all
taxes, obligations, and expenses of administration are paid for, his distributable estate should be divided,
in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b)
P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma
Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the remainder shall
go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A.
Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E.
Bellis, in equal shares.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.

Footnotes

1
He later filed a motion praying that as a legal heir he be included in this case as one of the
oppositors-appellants; to file or adopt the opposition of his sisters to the project of partition; to
submit his brief after paying his proportionate share in the expenses incurred in the printing of the
record on appeal; or to allow him to adopt the briefs filed by his sisters but this Court resolved
to deny the motion.

2
San Antonio, Texas was his legal residence.
 3
Lim vs. Collector, 36 Phil. 472; In re Testate Estate of Suntay, 95 Phil. 500.

EN BANC

[G.R. No. 124893. April 18, 1997]

LYNETTE G. GARVIDA, petitioner, vs. FLORENCIO G. SALES, JR., THE HONORABLE

COMMISSION ON ELECTIONS, ELECTION OFFICER DIONISIO F. RIOS and
PROVINCIAL SUPERVISOR NOLI PIPO, respondents.

DECISION
PUNO, J.:

Petitioner Lynette G. Garvida seeks to annul and set aside the order dated May 2, 1996 of respondent
Commission on Elections (COMELEC) en banc suspending her proclamation as the duly elected
Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Municipality of Bangui, Ilocos Norte.
The facts are undisputed. The Sangguniang Kabataan (SK) elections nationwide was scheduled to be
held on May 6, 1996. On March 16, 1996, petitioner applied for registration as member and voter of the
Katipunan ng Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Board of Election Tellers,
however, denied her application on the ground that petitioner, who was then twenty-one years and ten
(10) months old, exceeded the age limit for membership in the Katipunan ng Kabataan as laid down in
Section 3 [b] of COMELEC Resolution No. 2824.
On April 2, 1996, petitioner filed a "Petition for Inclusion as Registered Kabataang Member and
Voter" with the Municipal Circuit Trial Court, Bangui-Pagudpud-Adams-Damalneg, Ilocos Norte. In a
decision dated April 18, 1996, the said court found petitioner qualified and ordered her registration as
member and voter in the Katipunan ng Kabataan.[1] The Board of Election Tellers appealed to the
Regional Trial Court, Bangui, Ilocos Norte.[2] The presiding judge of the Regional Trial Court, however,
inhibited himself from acting on the appeal due to his close association with petitioner.[3]
On April 23, 1996, petitioner filed her certificate of candidacy for the position of Chairman,
Sangguniang Kabataan, Barangay San Lorenzo, Municipality of Bangui, Province of Ilocos Norte. In a
letter dated April 23, 1996, respondent Election Officer Dionisio F. Rios, per advice of Provincial
Election Supervisor Noli Pipo,[4] disapproved petitioner's certificate of candidacy again due to her
age.[5] Petitioner, however, appealed to COMELEC Regional Director Filemon A. Asperin who set aside
the order of respondents and allowed petitioner to run.[6]
On May 2, 1996, respondent Rios issued a memorandum to petitioner informing her of her
ineligibility and giving her 24 hours to explain why her certificate of candidacy should not be
disapproved.[7] Earlier and without the knowledge of the COMELEC officials, private respondent
Florencio G. Sales, Jr., a rival candidate for Chairman of the Sangguniang Kabataan, filed with the
COMELEC en banc a "Petition of Denial and/or Cancellation of Certificate of Candidacy" against
petitioner Garvida for falsely representing her age qualification in her certificate of candidacy. The
petition was sent by facsimile[8] and registered mail on April 29, 1996 to the Commission on Elections
National Office, Manila.
 On May 2, 1996, the same day respondent Rios issued the memorandum to petitioner, the
COMELEC en banc issued an order directing the Board of Election Tellers and Board of Canvassers of
Barangay San Lorenzo to suspend the proclamation of petitioner in the event she won in the election. The
order reads as follows:
"Acting on the Fax "Petition for Denial And/Or Cancellation of Certificate of Candidacy" by
petitioner Florencio G. Sales, Jr. against Lynette G. Garvida, received on April 29, 1996, the
pertinent allegations of which reads:
xxx

5. That the said respondent is disqualified to become a voter and a candidate for the SK for the reason that
she will be more than twenty-one (21) years of age on May 6, 1996; that she was born on June 11, 1974
as can be gleaned from her birth certificate, a copy of which is hereto attached and marked as Annex "A";

6. That in filing her certificate of candidacy as candidate for SK of Bgy. San Lorenzo, Bangui, Ilocos
Norte, she made material representation which is false and as such, she is disqualified; that her certificate
of candidacy should not be given due course and that said candidacy must be cancelled;

x x x."
the Commission, it appearing that the petition is meritorious, hereby DIRECTS the Board of
Election Tellers/Board of Canvassers of Barangay San Lorenzo, Bangui, Ilocos Norte, to
suspend the proclamation of Lynette G. Garvida in the event she garners the highest number of
votes for the position of Sangguniang Kabataan [sic].
Meantime, petitioner is hereby required to submit immediately ten (10) copies of his petition
and to pay the filing and legal research fees in the amount of P510.00.
SO ORDERED."[9]
On May 6, 1996, election day, petitioner garnered 78 votes as against private respondent's votes of
76.[10] In accordance with the May 2, 1996 order of the COMELEC en banc, the Board of Election Tellers
did not proclaim petitioner as the winner. Hence, the instant petition for certiorari was filed on May 27,
1996.
On June 2, 1996, however, the Board of Election Tellers proclaimed petitioner the winner for the
position of SK chairman, Barangay San Lorenzo, Bangui, Ilocos Norte.[11] The proclamation was "without
prejudice to any further action by the Commission on Elections or any other interested party." [12] On July
5, 1996, petitioner ran in the Pambayang Pederasyon ng mga Sangguniang Kabataan for the municipality
of Bangui, Ilocos Norte. She won as Auditor and was proclaimed one of the elected officials of the
Pederasyon.[13]
Petitioner raises two (2) significant issues: the first concerns the jurisdiction of the COMELEC en
banc to act on the petition to deny or cancel her certificate of candidacy; the second, the cancellation of
her certificate of candidacy on the ground that she has exceeded the age requirement to run as an elective
official of the SK.
I
Section 532 (a) of the Local Government Code of 1991 provides that the conduct of the SK elections
is under the supervision of the COMELEC and shall be governed by the Omnibus Election Code. [14] The
Omnibus Election Code, in Section 78, Article IX, governs the procedure to deny due course to or cancel
a certificate of candidacy, viz:
 "Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. -- A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any
person exclusively on the ground that any material representation contained therein as required
under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five
days from the time of filing of the certificate of candidacy and shall be decided, after due notice
and hearing, not later than fifteen days before election."
In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition to deny due
course to or cancel a certificate of candidacy for an elective office may be filed with the Law Department
of the COMELEC on the ground that the candidate has made a false material representation in his
certificate. The petition may be heard and evidence received by any official designated by the COMELEC
after which the case shall be decided by the COMELEC itself.[15]
Under the same Rules of Procedure, jurisdiction over a petition to cancel a certificate of candidacy
lies with the COMELEC sitting in Division, not en banc. Cases before a Division may only be entertained
by the COMELEC en banc when the required number of votes to reach a decision, resolution, order or
ruling is not obtained in the Division. Moreover, only motions to reconsider decisions, resolutions, orders
or rulings of the COMELEC in Division are resolved by the COMELEC en banc.[16] It is therefore the
COMELEC sitting in Divisions that can hear and decide election cases. This is clear from Section 3 of the
said Rules thus:
"Sec. 3. The Commission Sitting in Divisions. -- The Commission shall sit in two (2) Divisions
to hear and decide protests or petitions in ordinary actions, special actions, special cases,
provisional remedies, contempt and special proceedings except in accreditation of citizens' arms
of the Commission."[17]
In the instant case, the COMELEC en banc did not refer the case to any of its Divisions upon receipt
of the petition. It therefore acted without jurisdiction or with grave abuse of discretion when it entertained
the petition and issued the order of May 2, 1996.[18]
II
The COMELEC en banc also erred when it failed to note that the petition itself did not comply with
the formal requirements of pleadings under the COMELEC Rules of Procedure. These requirements are:
"Sec. 1. Filing of Pleadings. -- Every pleading, motion and other papers must be filed in ten (10)
legible copies. However, when there is more than one respondent or protestee, the petitioner or
protestant must file additional number of copies of the petition or protest as there are additional
respondents or protestees.
Sec. 2. How Filed. -- The documents referred to in the immediately preceding section must be
filed directly with the proper Clerk of Court of the Commission personally, or, unless otherwise
provided in these Rules, by registered mail. In the latter case, the date of mailing is the date of
filing and the requirement as to the number of copies must be complied with.
Sec. 3. Form of Pleadings, etc. -- (a) All pleadings allowed by these Rules shall be printed,
mimeographed or typewritten on legal size bond paper and shall be in English or Filipino.
x x x."
Every pleading before the COMELEC must be printed, mimeographed or typewritten in legal size bond
paper and filed in at least ten (10) legible copies. Pleadings must be filed directly with the proper Clerk of
Court of the COMELEC personally, or, by registered mail.
 In the instant case, the subject petition was not in proper form. Only two (2) copies of the petition
were filed with the COMELEC.[19] Also, the COMELEC en banc issued its Resolution on the basis of the
petition transmitted by facsimile, not by registered mail.
A facsimile or fax transmission is a process involving the transmission and reproduction of printed
and graphic matter by scanning an original copy, one elemental area at a time, and representing the shade
or tone of each area by a specified amount of electric current.[20] The current is transmitted as a signal
over regular telephone lines or via microwave relay and is used by the receiver to reproduce an image of
the elemental area in the proper position and the correct shade.[21] The receiver is equipped with a stylus
or other device that produces a printed record on paper referred to as a facsimile.[22]
Filing a pleading by facsimile transmission is not sanctioned by the COMELEC Rules of Procedure,
much less by the Rules of Court. A facsimile is not a genuine and authentic pleading. It is, at best, an
exact copy preserving all the marks of an original.[23]
Without the original, there is no way of determining on its face whether the facsimile pleading is
genuine and authentic and was originally signed by the party and his counsel. It may, in fact, be a sham
pleading. The uncertainty of the authenticity of a facsimile pleading should have restrained the
COMELEC en banc from acting on the petition and issuing the questioned order. The COMELECen
banc should have waited until it received the petition filed by registered mail.
III
To write finis to the case at bar, we shall now resolve the issue of petitioner's age.
The Katipunan ng Kabataan was originally created by Presidential Decree No. 684 in 1975 as the
Kabataang Barangay, a barangay youth organization composed of all residents of the barangay who were
at least 15 years but less than 18 years of age.[24]
The Kabataang Barangay sought to provide its members a medium to express their views and
opinions and participate in issues of transcendental importance.[25] Its affairs were administered by a
barangay youth chairman together with six barangay youth leaders who were actual residents of the
barangay and were at least 15 years but less than 18 years of age.[26] In 1983, Batas Pambansa Blg. 337,
then the Local Government Code, raised the maximum age of the Kabataang Barangay members from
"less than 18 years of age" to "not more than 21 years of age."
The Local Government Code of 1991 changed the Kabataang Barangay into the Katipunan ng
Kabataan. It, however, retained the age limit of the members laid down in B.P. 337 at 15 but not more
than 21 years old.[27] The affairs of the Katipunan ng Kabataan are administered by the Sangguniang
Kabataan (SK) composed of a chairman and seven (7) members who are elected by the Katipunan ng
Kabataan.[28]
The chairman automatically becomes ex-officio member of the Sangguniang Barangay.[29] A
member of the SK holds office for a term of three (3) years, unless sooner removed for cause, or becomes
permanently incapacitated, dies or resigns from office.[30]
Membership in the Katipunan ng Kabataan is subject to specific qualifications laid down by the
Local Government Code of 1991, viz:
"Sec. 424. Katipunan ng Kabataan. -- The katipunan ng kabataan shall be composed of all
citizens of the Philippines actually residing in the barangay for at least six (6) months, who are
fifteen (15) but not more than twenty-one (21) years of age, and who are duly registered in the
list of the sangguniang kabataan or in the official barangay list in the custody of the barangay
secretary."
A member of the Katipunan ng Kabataan may become a candidate for the Sangguniang Kabataan if he
possesses the following qualifications:
"Sec. 428. Qualifications. -- An elective official of the sangguniang kabataan must be a citizen
of the Philippines, a qualified voter of the katipunan ng kabataan, a resident of the barangay for
at least one (1) year immediately prior to election, at least fifteen (15) years but not more than
twenty-one (21) years of age on the day of his election, able to read and write Filipino, English,
or the local dialect, and must not have been convicted of any crime involving moral turpitude."
Under Section 424 of the Local Government Code, a member of the Katipunan ng Kabataan must
be: (a) a Filipino citizen; (b) an actual resident of the barangay for at least six months; (c) 15 but not more
than 21 years of age; and (d) duly registered in the list of the Sangguniang Kabataan or in the official
barangay list. Section 428 of the Code requires that an elective official of the Sangguniang Kabataan must
be: (a) a Filipino citizen; (b) a qualified voter in the Katipunan ng Kabataan; (c) a resident of the barangay
at least one (1) year immediately preceding the election; (d) at least 15 years but not more than 21 years
of age on the day of his election; (e) able to read and write; and (f) must not have been convicted of any
crime involving moral turpitude.
For the May 6, 1996 SK elections, the COMELEC interpreted Sections 424 and 428 of the Local
Government Code of 1991 in Resolution No. 2824 and defined how a member of the Katipunan ng
Kabataan becomes a qualified voter and an elective official. Thus:
"Sec. 3. Qualifications of a voter. -- To be qualified to register as a voter in the SK elections, a
person must be:

a) a citizen of the Philippines;

b) fifteen (15) but not more than twenty-one (21) years of age on election day, that is, he must have been
born between May 6, 1975 and May 6, 1981, inclusive; and

c) a resident of the Philippines for at least one (1) year and actually residing in the barangay wherein he
proposes to vote for at least six (6) months immediately preceding the elections."

xxx
"Sec. 6. Qualifications of elective members. -- An elective official of the SK must be:

a) a qualified voter;

b) a resident in the barangay for at least one (1) year immediately prior to the elections; and

c) able to read and write Filipino or any Philippine language or dialect or English.

Cases involving the eligibility or qualification of candidates shall be decided by the

city/municipal Election Officer (EO) whose decision shall be final."
A member of the Katipunan ng Kabataan may be a qualified voter in the May 6, 1996 SK elections if he
is: (a) a Filipino citizen; (b) 15 but not more than 21 years of age on election day, i.e., the voter must be
born between May 6, 1975 and May 6, 1981, inclusive; and (c) a resident of the Philippines for at least
one (1) year and an actual resident of the barangay at least six (6) months immediately preceding the
elections. A candidate for the SK must: (a) possess the foregoing qualifications of a voter; (b) be a
resident in the barangay at least one (1) year immediately preceding the elections; and (c) able to read and
write.
Except for the question of age, petitioner has all the qualifications of a member and voter in the
Katipunan ng Kabataan and a candidate for the Sangguniang Kabataan. Petitioner's age is admittedly
beyond the limit set in Section 3 [b] of COMELEC Resolution No. 2824. Petitioner, however, argues that
Section 3 [b] of Resolution No. 2824 is unlawful, ultra vires and beyond the scope of Sections 424 and
428 of the Local Government Code of 1991. She contends that the Code itself does not provide that the
voter must be exactly 21 years of age on election day. She urges that so long as she did not turn twenty-
two (22) years old, she was still twenty-one years of age on election day and therefore qualified as a
member and voter in the Katipunan ng Kabataan and as candidate for the SK elections.
A closer look at the Local Government Code will reveal a distinction between the maximum age of a
member in the Katipunan ng Kabataan and the maximum age of an elective SK official.Section 424 of the
Code sets a member's maximum age at 21 years only. There is no further provision as to when the
member shall have turned 21 years of age. On the other hand, Section 428 provides that the maximum age
of an elective SK official is 21 years old "on the day of his election." The addition of the phrase "on the
day of his election" is an additional qualification. The member may be more than 21 years of age on
election day or on the day he registers as member of the Katipunan ng Kabataan. The elective official,
however, must not be more than 21 years old on the day of election. The distinction is understandable
considering that the Code itself provides more qualifications for an elective SK official than for a member
of the Katipunan ng Kabataan. Dissimilum dissimilis est ratio.[31] The courts may distinguish when there
are facts and circumstances showing that the legislature intended a distinction or qualification.[32]
The qualification that a voter in the SK elections must not be more than 21 years of age on the day of
the election is not provided in Section 424 of the Local Government Code of 1991. In fact the term
"qualified voter" appears only in COMELEC Resolution No. 2824.[33] Since a "qualified voter" is not
necessarily an elective official, then it may be assumed that a "qualified voter" is a "member of the
Katipunan ng Kabataan." Section 424 of the Code does not provide that the maximum age of a member of
the Katipunan ng Kabataan is determined on the day of the election. Section 3 [b] ofCOMELEC
Resolution No. 2824 is therefore ultra vires insofar as it sets the age limit of a voter for the SK elections at
exactly 21 years on the day of the election.
The provision that an elective official of the SK should not be more than 21 years of age on the day
of his election is very clear. The Local Government Code speaks of years, not months nor days. When the
law speaks of years, it is understood that years are of 365 days each.[34] One born on the first day of the
year is consequently deemed to be one year old on the 365th day after his birth -- the last day of the
year.[35] In computing years, the first year is reached after completing the first 365 days. After the first
365th day, the first day of the second 365-day cycle begins. On the 365th day of the second cycle, the
person turns two years old. This cycle goes on and on in a lifetime. A person turns 21 years old on the
365th day of his 21st 365-day cycle. This means on his 21st birthday, he has completed the entire span of
21 365-day cycles. After this birthday, the 365-day cycle for his 22nd year begins. The day after the 365th
day is the first day of the next 365-day cycle and he turns 22 years old on the 365th day.
The phrase "not more than 21 years of age" means not over 21 years, not beyond 21 years. It means
21 365-day cycles. It does not mean 21 years and one or some days or a fraction of a year because that
would be more than 21 365-day cycles. "Not more than 21 years old" is not equivalent to "less than 22
years old," contrary to petitioner's claims. The law does not state that the candidate be less than 22 years
on election day.
In P.D. 684, the law that created the Kabataang Barangay, the age qualification of a barangay youth
official was expressly stated as "x x x at least fifteen years of age or over but less than eighteen x x
x."[36] This provision clearly states that the youth official must be at least 15 years old and may be 17
years and a fraction of a year but should not reach the age of eighteen years. When the Local Government
Code increased the age limit of members of the youth organization to 21 years, it did not reenact the
provision in such a way as to make the youth "at least 15 but less than 22 years old." If the intention of the
Code's framers was to include citizens less than 22 years old, they should have stated so expressly instead
of leaving the matter open to confusion and doubt.[37]
Former Senator Aquilino Q. Pimentel, the sponsor and principal author of the Local Government
Code of 1991 declared that one of the reasons why the Katipunan ng Kabataan was created and the
Kabataang Barangay discontinued was because most, if not all, Kabataang Barangay leaders were already
over 21 years of age by the time President Aquino assumed power.[38] They were not the "youth"
anymore. The Local Government Code of 1991 fixed the maximum age limit at not more than 21
years[39] and the only exception is in the second paragraph of Section 423 which reads:

"Sec. 423. Creation and Election. -- a) x x x;

b) A sangguniang kabataan official who, during his term of office, shall have passed the age of
twenty-one (21) years shall be allowed to serve the remaining portion of the term for which he
was elected."
The general rule is that an elective official of the Sangguniang Kabataan must not be more
than 21 years of age on the day of his election. The only exception is when the official reaches the age of
21 years during his incumbency. Section 423 [b] of the Code allows him to serve the remaining portion of
the term for which he was elected. According to Senator Pimentel, the youth leader must have "been
elected prior to his 21st birthday."[40] Conversely, the SK official must not have turned 21 years old before
his election. Reading Section 423 [b] together with Section 428 of the Code, the latest date at which an
SK elective official turns 21 years old is on the day of his election. The maximum age of a youth official
must therefore be exactly 21 years on election day. Section 3 [b] in relation to Section 6 [a] of
COMELEC Resolution No. 2824 is not ultra vires insofar as it fixes the maximum age of an elective SK
official on the day of his election.
In the case at bar, petitioner was born on June 11, 1974. On March 16, 1996, the day she registered
as voter for the May 6, 1996 SK elections, petitioner was twenty-one (21) years and nine (9) months
old. On the day of the elections, she was 21 years, 11 months and 5 days old. When she assumed office on
June 1, 1996, she was 21 years, 11 months and 20 days old and was merely ten (10) days away from
turning 22 years old. Petitioner may have qualified as a member of the Katipunan ng Kabataan but
definitely, petitioner was over the age limit for elective SK officials set by Section 428 of the Local
Government Code and Sections 3 [b] and 6 of Comelec Resolution No. 2824. She was ineligible to run as
candidate for the May 6, 1996 Sangguniang Kabataan elections.
The requirement that a candidate possess the age qualification is founded on public policy and if he
lacks the age on the day of the election, he can be declared ineligible.[41]
In the same vein, if the candidate is over the maximum age limit on the day of the election, he is
ineligible. The fact that the candidate was elected will not make the age requirement directory, nor will it
validate his election.[42] The will of the people as expressed through the ballot cannot cure the vice of
ineligibility.[43]
The ineligibility of petitioner does not entitle private respondent, the candidate who obtained the
highest number of votes in the May 6, 1996 elections, to be declared elected. [44] A defeated candidate
cannot be deemed elected to the office.[45] Moreover, despite his claims,[46] private respondent has failed
to prove that the electorate themselves actually knew of petitioner's ineligibility and that they maliciously
voted for her with the intention of misapplying their franchises and throwing away their votes for the
benefit of her rival candidate.[47]
 Neither can this Court order that pursuant to Section 435 of the Local Government Code petitioner
should be succeeded by the Sangguniang Kabataan member who obtained the next highest number of
votes in the May 6, 1996 elections.[48] Section 435 applies when a Sangguniang Kabataan Chairman
"refuses to assume office, fails to qualify,[49] is convicted of a felony, voluntarily resigns, dies, is
permanently incapacitated, is removed from office, or has been absent without leave for more than three
(3) consecutive months."
The question of the age qualification is a question of eligibility.[50]
Being "eligible" means being "legally qualified; capable of being legally chosen."[51]
Ineligibility, on the other hand, refers to the lack of the qualifications prescribed in the Constitution
or the statutes for holding public office.[52] Ineligibility is not one of the grounds enumerated in Section
435 for succession of the SK Chairman.
To avoid a hiatus in the office of SK Chairman, the Court deems it necessary to order that the
vacancy be filled by the SK member chosen by the incumbent SK members of Barangay San Lorenzo,
Bangui, Ilocos Norte by simple majority from among themselves. The member chosen shall assume the
office of SK Chairman for the unexpired portion of the term, and shall discharge the powers and duties,
and enjoy the rights and privileges appurtenant to said office.
IN VIEW WHEREOF, the petition is dismissed and petitioner Lynette G. Garvida is declared
ineligible for being over the age qualification for candidacy in the May 6, 1996 elections of the
Sangguniang Kabataan, and is ordered to vacate her position as Chairman of the Sangguniang Kabataan
of Barangay San Lorenzo, Bangui, Ilocos Norte. The Sangguniang Kabataan member voted by simple
majority by and from among the incumbent Sangguniang Kabataan members of Barangay San Lorenzo,
Bangui, Ilocos Norte shall assume the office of Sangguniang Kabataan Chairman of Barangay San
Lorenzo, Bangui, Ilocos Norte for the unexpired portion of the term.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza,
Francisco, Panganiban, and Torres, Jr., JJ., concur.
Hermosisima, J., on leave.

[1]
Annex "D" to Comment of Provincial Election Supervisor Noli Pipo, Rollo, pp. 57-58; Annex "A" to
Petition, Rollo, pp. 15-16
[2]
Annex "3" to the Comment for the Private Respondent, Rollo, pp. 109-112.2
[3]
The judge was then boarding in the house of petitioner (Comment for the Private Respondent, p.
2, Rollo, p. 89).
[4]
Annex "F" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, pp. 61-62.
[5]
Annex "C" to the Petition, Rollo p. 18; Annex "G" to the Comment of Provincial Election Supervisor
Noli Pipo, Rollo, p. 63.5
[6]
Annex "D" to the Petition, Rollo, p. 19; Annex "H" to the Comment of Provincial Election Supervisor
Noli Pipo, Rollo, p. 64.
[7]
Annex "I" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, p. 66.
[8]
Through the PT & T.
[9]
Annex "L" to the Petition, Rollo, pp. 71-73
[10]
Comment of Private Respondent Florencio Sales, Jr., p. 14, Rollo, p. 101.
[11]
Comment of Provincial Election Supervisor Noli Pipo, par. 18, Rollo, p. 41.
[12]
Annex "R" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, p. 82.
[13]
Annex "S" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, p. 83.
[14]
Section 532 (a) of the Code (B.P. 881) was amended by R.A. 7808 which in pertinent part reads:
"Sec. 1. x x x
The conduct of the sangguniang kabataan elections shall be under the supervision of the Commission on
Elections.
The Omnibus Election Code shall govern the elections of the sangguniang kabataan."
[15]
Rule 23 provides:
"Section 1. Ground for Denial of Certificate of Candidacy. -- A petition to deny due course to or cancel a
certificate of candidacy for any elective office may be filed with the Law Department of the Commission
by any citizen of voting age or a duly registered political party, organization, or coalition of political
parties on the exclusive ground that any material representation contained therein as required by law is
false.
Section 2. Period to File Petition. -- The petition must be filed within five (5) days following the last day
for the filing of certificates of candidacy.
Section 3. Summary Procedure. -- The petition shall be heard summarily after due notice.
Section 4. Delegation of Reception of Evidence. -- The Commission may designate any of its officials
who are members of the Philippine Bar to hear the case and to receive evidence."
[16]
Section 5 [b] and [c], Rule 3, COMELEC Rules of Procedure provides:
"Sec. 5. x x x
(b)When sitting in Divisions, two (2) Members of a Division shall constitute a quorum to transact
business. The concurrence of at least two (2) Members of a Division shall be necessary to reach a
decision, resolution, order or ruling. If this required number is not obtained, the case shall be
automatically elevated to the Commission en banc for decision or resolution.
(c)Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the
Commission en banc except motions on interlocutory orders of the Division which shall be resolved by
the Division which issued the order."
[17]
See also Section 3, Article IX [C] of the Constitution.
[18]
Sarmiento v. Commission On Elections, 212 SCRA 307, 131-134 [1992].
[19]
One copy was filed by registered mail and the other by facsimile. Third and fourth copies were sent by
registered mail to petitioner Garvida and the COMELEC officer (Annex 5-B to the Comment of Private
Respondent, Rollo, p. 116).
[20]
Facsimile Transmission," The New Encyclopaedia Britannica, p. 651, vol. 4, 15th ed. [1992].
[21]
Id.
[22]
Facsimile," The New Webster's International Encyclopedia, p. 375 [1996]; "Facsimile," Webster's
Third New International Dictionary, p. 813 [1971].
[23]
Black's Law Dictionary, p. 531, 5th ed. [1979].
[24]
Sections 1 and 4, P.D. 684.
[25]
Whereas clauses, Sec. 1, P.D. 684; Mercado v. Board of Elections Supervisors of Ibaan, Batangas, 243
SCRA 422, 426 [1995].
[26]
Section 2, P.D. 684.
[27]
Section 423, Chapter 8, Title I, Bk. III, R.A. 7160.
[28]
Sections 423, 428, Chapter 8, Title I, Bk. III, R.A. 7160.
[29]
Section 430, Id.
[30]
Section 429, Id.
[31]
Of things dissimilar, the rule is dissimilar.
[32]
Agpalo, Statutory Construction, pp. 142-143 [1990].
[33]
The Local Government Code speaks of the requirements for membership in the Katipunan ng
Kabataan, not the qualifications of a voter.
[34]
Civil Code, Article 13; National Marketing Corporation v. Tecson, 29 SCRA 70, 74 [1969].
[35]
Erwin v. Benton, 87 S.W. 291, 294; 120 Ky. 536 [1905].
[36]
Section 2, P.D. 684.
[37]
Feliciano v. Aquino, 102 Phil. 1159-1160 [1957].
[38]
Pimentel, A.Q., The Local Government Code of 1991, The Key to National Development, p. 440
[1993].
[39]
It is worth noting that it is only in the case of SK candidates that the Local Government Code sets a
maximum age limit. It sets a minimum age for the rest of the elective officials, e.g., members of the
sangguniang barangay, sangguniang panglungsod or bayan, sangguniang panlalawigan, mayor and
governor (Sec. 39, Chapter I, Title II, Bk. I, Local Government Code of 1991).
[40]
Pimentel, supra, at 440.
[41]
Castaneda v. Yap, 48 O.G. 3364, 3366 [1952].
[42]
Sanchez v. del Rosario, 1 SCRA 1102, 1106 [1961]; Feliciano v. Aquino, Jr., 102 Phil. 1159, 1160
[1957].
[43]
Frivaldo v. Commission on Elections, 174 SCRA 245, 255 [1989].
[44]
Aquino v. Commission on Elections, 248 SCRA 400, 423, 429 [1995]; Labo, Jr. v. Commission on
elections, 211 SCRA 297, 311 [1992]; Sanchez v. del Rosario, supra, at 1105.
[45]
Id.
[46]
Comment of Private Respondent Florencio Sales, Jr., pp. 14-15, Rollo, 101-102.
[47]
cf. Labo, Jr. v. Commission on Elections, supra, at 311.
[48]
Section 435 of the Local Government Code provides:
"Sec. 435. Succession and Filling of Vacancies. -- (a) In case a sangguniang kabataan chairman refuses to
assume office, fails to qualify, is convicted of a felony, voluntarily resigns, dies, is permanently
incapacitated, is removed from office, or has been absent without leave for more than three (3)
consecutive months, the sangguniang kabataan member who obtained the next highest number of votes in
the election immediately preceding shall assume the office of the chairman for the unexpired portion of
the term, and shall discharge the powers and duties, and enjoy the rights and privileges appurtenant to the
office. In case the said member refuses to assume the position or fails to qualify, the sangguniang
kabataan member obtaining the next highest number of votes shall assume the position of the chairman
for the unexpired portion of the term.
x x x."
[49]
"Failure to qualify" means a public officer's or employee's failure to take the oath and/or give the bond
required by law to signify his acceptance of the office and the undertaking to execute the trust confided in
him (Martin and Martin, Administrative Law, Law of Public Officers and Election Law, p. 140
[1983]; Mechem, A Treatise on the Law of Public Offices and Officers, Sec. 253, p. 162; Words and
Phrases, "Failure to Qualify," citing State v. Boyd, 48 N.W. 739, 751, 31 Neb. 682).
[50]
Gaerlan v. Catubig, 17 SCRA 376, 378 [1966]; Feliciano v. Aquino, Jr., supra.
[51]
People v. Yanza, 107 Phil. 888, 890 [1960].
[52]
Separate Opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on Elections,
248 SCRA 300, 398 [1995].

22 SCRA 525

[G.R. No. 127406. November 27, 2000]

OFELIA P. TY, petitioner, vs. THE COURT OF APPEALS, and EDGARDO M.

REYES, respondents.

DECISION
QUISUMBING, J.:

This appeal seeks the reversal of the decision dated July 24, 1996, of the Court of Appeals in C.A.
G.R. CV 37897, which affirmed the decision of the Regional Trial Court of Pasig, Branch 160, declaring
the marriage contract between private respondent Edgardo M. Reyes and petitioner Ofelia P. Ty null
and void ab initio. It also ordered private respondent to pay P15,000.00 as monthly support for their
children Faye Eloise Reyes and Rachel Anne Reyes.
As shown in the records of the case, private respondent married Anna Maria Regina Villanueva in a
civil ceremony on March 29, 1977, in Manila. Then they had a church wedding on August 27,
1977. However, on August 4, 1980, the Juvenile and Domestic Relations Court of Quezon City declared
their marriage null and void ab initio for lack of a valid marriage license. The church wedding on August
27, 1977, was also declared null and void ab initio for lack of consent of the parties.
 Even before the decree was issued nullifying his marriage to Anna Maria, private respondent wed
Ofelia P. Ty, herein petitioner, on April 4, 1979, in ceremonies officiated by the judge of the City Court
of Pasay. On April 4, 1982, they also had a church wedding in Makati, Metro Manila.
On January 3, 1991, private respondent filed a Civil Case 1853-J with the RTC of Pasig, Branch 160,
praying that his marriage to petitioner be declared null and void. He alleged that they had no marriage
license when they got married. He also averred that at the time he married petitioner, he was still married
to Anna Maria. He stated that at the time he married petitioner the decree of nullity of his marriage to
Anna Maria had not been issued. The decree of nullity of his marriage to Anna Maria was rendered only
on August 4, 1980, while his civil marriage to petitioner took place on April 4, 1979.
Petitioner, in defending her marriage to private respondent, pointed out that his claim that their
marriage was contracted without a valid license is untrue. She submitted their Marriage License No.
5739990 issued at Rosario, Cavite on April 3, 1979, as Exh. 11, 12 and 12-A. He did not question this
document when it was submitted in evidence. Petitioner also submitted the decision of the Juvenile and
Domestic Relations Court of Quezon City dated August 4, 1980, which declared null and void his civil
marriage to Anna Maria Regina Villanueva celebrated on March 29, 1977, and his church marriage to
said Anna Maria on August 27, 1977. These documents were submitted as evidence during trial and,
according to petitioner, are therefore deemed sufficient proof of the facts therein. The fact that the civil
marriage of private respondent and petitioner took place on April 4, 1979, before the judgment declaring
his prior marriage as null and void is undisputed. It also appears indisputable that private respondent and
petitioner had a church wedding ceremony on April 4, 1982.[1]
The Pasig RTC sustained private respondents civil suit and declared his marriage to herein petitioner
null and void ab initio in its decision dated November 4, 1991. Both parties appealed to respondent Court
of Appeals. On July 24, 1996, the appellate court affirmed the trial courts decision. It ruled that a judicial
declaration of nullity of the first marriage (to Anna Maria) must first be secured before a subsequent
marriage could be validly contracted. Said the appellate court:

We can accept, without difficulty, the doctrine cited by defendants counsel that no judicial decree is
necessary to establish the invalidity of void marriages. It does not say, however, that a second marriage
may proceed even without a judicial decree. While it is true that if a marriage is null and void, ab initio,
there is in fact no subsisting marriage, we are unwilling to rule that the matter of whether a marriage is
valid or not is for each married spouse to determine for himself for this would be the consequence of
allowing a spouse to proceed to a second marriage even before a competent court issues a judicial decree
of nullity of his first marriage. The results would be disquieting, to say the least, and could not have been
the intendment of even the now-repealed provisions of the Civil Code on marriage.

xxx

WHEREFORE, upon the foregoing ratiocination, We modify the appealed Decision in this wise:

1. The marriage contracted by plaintiff-appellant [herein private respondent] Eduardo M. Reyes

and defendant-appellant [herein petitioner] Ofelia P. Ty is declared null and void ab initio;
2. Plaintiff-appellant Eduardo M. Reyes is ordered to give monthly support in the amount of
P15,000.00 to his children Faye Eloise Reyes and Rachel Anne Reyes from November 4,
1991; and
3. Cost against plaintiff-appellant Eduardo M. Reyes.

SO ORDERED.[2]
 Petitioners motion for reconsideration was denied. Hence, this instant petition asserting that the
Court of Appeals erred:
I.

BOTH IN THE DECISION AND THE RESOLUTION, IN REQUIRING FOR THE VALIDITY OF
PETITIONERS MARRIAGE TO RESPONDENT, A JUDICIAL DECREE NOT REQUIRED BY LAW.

II

IN THE RESOLUTION, IN APPLYING THE RULING IN DOMINGO VS. COURT OF APPEALS.

III

IN BOTH THE DECISION AND RESOLUTION IN NOT CONSIDERING THE CIVIL EFFECTS OF
THE RELIGIOUS RATIFICATION WHICH USED THE SAME MARRIAGE LICENSE.

IV

IN THE DECISION NOT GRANTING MORAL AND EXEMPLARY DAMAGES TO THE

DEFENDANT-APPELLANT.

The principal issue in this case is whether the decree of nullity of the first marriage is required before
a subsequent marriage can be entered into validly? To resolve this question, we shall go over applicable
laws and pertinent cases to shed light on the assigned errors, particularly the first and the second which
we shall discuss jointly.
In sustaining the trial court, the Court of Appeals declared the marriage of petitioner to private
respondent null and void for lack of a prior judicial decree of nullity of the marriage between private
respondent and Villanueva. The appellate court rejected petitioners claim that People v.
Mendoza[3] and People v. Aragon[4] are applicable in this case. For these cases held that where a marriage
isvoid from its performance, no judicial decree is necessary to establish its invalidity. But the appellate
court said these cases, decided before the enactment of the Family Code (E.O. No. 209 as amended by
E.O No. 227), no longer control. A binding decree is now needed and must be read into the provisions of
law previously obtaining.[5]
In refusing to consider petitioners appeal favorably, the appellate court also said:

Terre v. Attorney Terre, Adm. Case No. 2349, 3 July 1992 is mandatory precedent for this case. Although
decided by the High Court in 1992, the facts situate it within the regime of the now-repealed provisions of
the Civil Code, as in the instant case.

xxx

For purposes of determining whether a person is legally free to contract a second marriage, a judicial
declaration that the first marriage was null and void ab initio is essential. . . .[6]

At the outset, we must note that private respondents first and second marriages contracted in 1977
and 1979, respectively, are governed by the provisions of the Civil Code. The present case differs
significantly from the recent cases of Bobis v. Bobis[7] and Mercado v. Tan,[8] both involving
a criminal case for bigamy where the bigamous marriage was contracted during the effectivity of the
Family Code,[9] under which a judicial declaration of nullity of marriage is clearly required.
Pertinent to the present controversy, Article 83 of the Civil Code provides that:

Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of
such person with any person other than such first spouse shall be illegal and void from its performance,
unless:

(1) The first marriage was annulled or dissolved; or

(2) The first spouse had been absent for seven consecutive years at the time of the second marriage
without the spouse present having news of the absentee being alive, or if the absentee, though he has been
absent for less than seven years, is generally considered as dead and before any person believed to be so
by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed
dead according to articles 390 and 391. The marriage so contracted shall be valid in any of the three cases
until declared null and void by a competent court.

As to whether a judicial declaration of nullity of a void marriage is necessary, the Civil Code
contains no express provision to that effect. Jurisprudence on the matter, however, appears to be
conflicting.
Originally, in People v. Mendoza,[10] and People v. Aragon,[11] this Court held that no judicial decree
is necessary to establish the nullity of a void marriage. Both cases involved the same factual
milieu. Accused contracted a second marriage during the subsistence of his first marriage. After the death
of his first wife, accused contracted a third marriage during the subsistence of the second marriage. The
second wife initiated a complaint for bigamy. The Court acquitted accused on the ground that the second
marriage is void, having been contracted during the existence of the first marriage. There is no need for a
judicial declaration that said second marriage is void. Since the second marriage is void, and the first one
terminated by the death of his wife, there are no two subsisting valid marriages. Hence, there can be no
bigamy. Justice Alex Reyes dissented in both cases, saying that it is not for the spouses but the court to
judge whether a marriage is void or not.
In Gomez v. Lipana,[12] and Consuegra v. Consuegra,[13] however, we recognized the right of the
second wife who entered into the marriage in good faith, to share in their acquired estate and in proceeds
of the retirement insurance of the husband. The Court observed that although the second marriage can be
presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there
was a need for judicial declaration of such nullity (of the second marriage). And since the death of the
husband supervened before such declaration, we upheld the right of the second wife to share in the estate
they acquired, on grounds of justice and equity.[14]
But in Odayat v. Amante (1977),[15] the Court adverted to Aragon and Mendoza as precedents. We
exonerated a clerk of court of the charge of immorality on the ground that his marriage to Filomena
Abella in October of 1948 was void, since she was already previously married to one Eliseo Portales in
February of the same year. The Court held that no judicial decree is necessary to establish the invalidity
of void marriages. This ruling was affirmed in Tolentino v. Paras.[16]
Yet again in Wiegel v. Sempio-Diy (1986),[17] the Court held that there is a need for a judicial
declaration of nullity of a void marriage. In Wiegel, Lilia married Maxion in 1972. In 1978, she married
another man, Wiegel. Wiegel filed a petition with the Juvenile Domestic Relations Court to declare his
marriage to Lilia as void on the ground of her previous valid marriage. The Court, expressly relying
on Consuegra, concluded that:[18]
 There is likewise no need of introducing evidence about the existing prior marriage of her first
husband at the time they married each other, for then such a marriage though void still needs according to
this Court a judicial declaration (citing Consuegra) of such fact and for all legal intents and purposes she
would still be regarded as a married woman at the time she contracted her marriage with respondent Karl
Heinz Wiegel; accordingly, the marriage of petitioner and respondent would be regarded VOID under the
law. (Emphasis supplied).
In Yap v. Court of Appeals,[19] however, the Court found the second marriage void without need of
judicial declaration, thus reverting to the Odayat, Mendoza and Aragon rulings.
At any rate, the confusion under the Civil Code was put to rest under the Family Code. Our rulings
in Gomez, Consuegra, and Wiegel were eventually embodied in Article 40 of the Family Code.[20] Article
40 of said Code expressly required a judicial declaration of nullity of marriage

Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the
basis solely of a final judgment declaring such previous marriage void.

In Terre v. Terre (1992)[21] the Court, applying Gomez, Consuegra and Wiegel, categorically stated
that a judicial declaration of nullity of a void marriage is necessary. Thus, we disbarred a lawyer for
contracting a bigamous marriage during the subsistence of his first marriage. He claimed that his first
marriage in 1977 was void since his first wife was already married in 1968. We held that Atty. Terre
should have known that the prevailing case law is that for purposes of determining whether a person is
legally free to contract a second marriage, a judicial declaration that the first marriage was null and
void ab initio is essential.
The Court applied this ruling in subsequent cases. In Domingo v. Court of Appeals (1993),[22] the
Court held:

Came the Family Code which settled once and for all the conflicting jurisprudence on the matter. A
declaration of absolute nullity of marriage is now explicitly required either as a cause of action or a
ground for defense. (Art. 39 of the Family Code). Where the absolute nullity of a previous marriage is
sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law for
said projected marriage to be free from legal infirmity is a final judgment declaring the previous marriage
void. (Family Code, Art. 40; See also arts. 11, 13, 42, 44, 48, 50, 52, 54, 86, 99, 147, 148).[23]

However, a recent case applied the old rule because of the peculiar circumstances of the
case. In Apiag v. Cantero, (1997)[24] the first wife charged a municipal trial judge of immorality for
entering into a second marriage. The judge claimed that his first marriage was void since he was merely
forced into marrying his first wife whom he got pregnant. On the issue of nullity of the first marriage, we
applied Odayat, Mendoza and Aragon. We held that since the second marriage took place and all the
children thereunder were born before the promulgation of Wiegel and the effectivity of the Family Code,
there is no need for a judicial declaration of nullity of the first marriage pursuant to prevailing
jurisprudence at that time.
Similarly, in the present case, the second marriage of private respondent was entered into in 1979,
before Wiegel. At that time, the prevailing rule was found in Odayat, Mendoza and Aragon. The first
marriage of private respondent being void for lack of license and consent, there was no need for judicial
declaration of its nullity before he could contract a second marriage. In this case, therefore, we conclude
that private respondents second marriage to petitioner is valid.
Moreover, we find that the provisions of the Family Code cannot be retroactively applied to the
present case, for to do so would prejudice the vested rights of petitioner and of her children. As held
in Jison v. Court of Appeals,[25] the Family Code has retroactive effect unless there be impairment of
vested rights. In the present case, that impairment of vested rights of petitioner and the children is
patent. Additionally, we are not quite prepared to give assent to the appellate courts finding that despite
private respondents deceit and perfidy in contracting marriage with petitioner, he could benefit from her
silence on the issue. Thus, coming now to the civil effects of the church ceremony wherein petitioner
married private respondent using the marriage license used three years earlier in the civil ceremony, we
find that petitioner now has raised this matter properly. Earlier petitioner claimed as untruthful private
respondents allegation that he wed petitioner but they lacked a marriage license.Indeed we find there was
a marriage license, though it was the same license issued on April 3, 1979 and used in both the civil and
the church rites. Obviously, the church ceremony was confirmatory of their civil marriage. As petitioner
contends, the appellate court erred when it refused to recognize the validity and salutary effects of said
canonical marriage on a technicality, i.e. that petitioner had failed to raise this matter as affirmative
defense during trial. She argues that such failure does not prevent the appellate court
from giving her defense due consideration and weight. She adds that the interest of the State in protecting
the inviolability of marriage, as a legal and social institution, outweighs such technicality. In our view,
petitioner and private respondent had complied with all the essential and formal requisites for a valid
marriage, including the requirement of a valid license in the first of the two ceremonies. That this license
was used legally in the celebration of the civil ceremony does not detract from the ceremonial use thereof
in the church wedding of the same parties to the marriage, for we hold that the latter rites served not only
to ratify but also to fortify the first.The appellate court might have its reasons for brushing aside this
possible defense of the defendant below which undoubtedly could have tendered a valid issue, but which
was not timely interposed by her before the trial court. But we are now persuaded we cannot play blind to
the absurdity, if not inequity, of letting the wrongdoer profit from what the CA calls his own deceit and
perfidy.
On the matter of petitioners counterclaim for damages and attorneys fees. Although the appellate
court admitted that they found private respondent acted duplicitously and craftily in marrying petitioner, it
did not award moral damages because the latter did not adduce evidence to support her claim.[26]
Like the lower courts, we are also of the view that no damages should be awarded in the present
case, but for another reason. Petitioner wants her marriage to private respondent held valid and
subsisting. She is suing to maintain her status as legitimate wife. In the same breath, she asks for damages
from her husband for filing a baseless complaint for annulment of their marriage which caused her mental
anguish, anxiety, besmirched reputation, social humiliation and alienation from her parents. Should we
grant her prayer, we would have a situation where the husband pays the wife damages from conjugal or
common funds. To do so, would make the application of the law absurd. Logic, if not common sense,
militates against such incongruity. Moreover, our laws do not comprehend an action for damages between
husband and wife merely because of breach of a marital obligation.[27] There are other remedies.[28]
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated
July 24, 1996 and its Resolution dated November 7, 1996, are reversed partially, so that the marriage of
petitioner Ofelia P. Ty and private respondent Edgardo M. Reyes is hereby DECLARED VALID AND
SUBSISTING; and the award of the amount of P15,000.00 is RATIFIED and MAINTAINED as monthly
support to their two children, Faye Eloise Reyes and Rachel Anne Reyes, for as long as they are of minor
age or otherwise legally entitled thereto. Costs against private respondent.
SO ORDERED.

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
Heir-appellees,
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:

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.

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.

FACTS: EDWARD Christensen died testate. The estate was distributed by Executioner Aznar according
to the will, which provides that: Php 3,600 be given to HELEN Christensen as her legacy, and the rest of
his estate to his daughter LUCY Christensen, as pronounced by CFI Davao.
Opposition to the approval of the project of partition was filed by Helen, insofar as it deprives her of her
legitime as an acknowledged natural child, she having been declared by Us an acknowledged natural child
of the deceased Edward in an earlier case.

As to his citizenship, we find that the citizenship that he acquired in California when he resided in
Sacramento from 1904 to 1913, was never lost by his stay in the Philippines, and the deceased appears to
have considered himself as a citizen of California by the fact that when he executed his will 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. But at the time of his death, he was domiciled in the Philippines.

ISSUE: what law on succession should apply, the Philippine law or the California law?
HELD: 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.
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.

The next question is: What is the law in California governing the disposition of personal property?
The decision of CFI Davao, 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. But
HELEN 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.
It is argued on executors behalf that as the deceased Christensen was a citizen of the State of California,
the internal law thereof, which is that given in the Kaufman case, should govern the determination of the
validity of the testamentary provisions of Christensens 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 the renvoi, the question
of the validity of the testamentary provision in question should be referred back to the law of the
decedents domicile, which is the Philippines.

We note that Article 946 of the California Civil Code is its conflict of laws rule, while the rule applied in
In re Kaufman, its internal law. If the law on succ ession 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.

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.

It is argued on appellees (Aznar and LUCY) 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 testators 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.

We therefore find that as the domicile of the deceased Edward, a citizen of California, is the Philippines,
the validity of the provisions of his will depriving his acknowledged natural child, the appellant HELEN,
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..

NOTES: 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.

LEGAL RESEARCH

SECOND DIVISION

REPUBLIC OF THE PHILIPPINES, G.R. No. 166676

Petitioner,
Present:

QUISUMBING, J., Chairperson,

CARPIO MORALES,
- versus -
TINGA,

VELASCO, JR., and

BRION, JJ.

Promulgated:
JENNIFER B. CAGANDAHAN,

Respondent.
September 12, 2008

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

DECISION
QUISUMBING, J.:
 This is a petition for review under Rule 45 of the Rules of Court raising purely questions of law and
seeking a reversal of the Decision[1] dated January 12, 2005 of the Regional Trial Court (RTC), Branch 33 of
Siniloan, Laguna, which granted the Petition for Correction of Entries in Birth Certificate filed by Jennifer
B. Cagandahan and ordered the following changes of entries in Cagandahans birth certificate: (1) the name
Jennifer Cagandahan changed to Jeff Cagandahan and (2) gender from female to male.

The facts are as follows.

On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction of Entries
in Birth Certificate[2] before the RTC, Branch 33 of Siniloan, Laguna.

In her petition, she alleged that she was born on January 13, 1981 and was registered as a female
in the Certificate of Live Birth but while growing up, she developed secondary male characteristics and
was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a condition where persons thus
afflicted possess both male and female characteristics. She further alleged that she was diagnosed to have
clitoral hyperthropy in her early years and at age six, underwent an ultrasound where it was discovered
that she has small ovaries. At age thirteen, tests revealed that her ovarian structures had minimized, she
has stopped growing and she has no breast or menstrual development. She then alleged that for all
interests and appearances as well as in mind and emotion, she has become a male person. Thus, she
prayed that her birth certificate be corrected such that her gender be changed from female to male and her
first name be changed from Jennifer to Jeff.

The petition was published in a newspaper of general circulation for three (3) consecutive weeks
and was posted in conspicuous places by the sheriff of the court. The Solicitor General entered his
appearance and authorized the Assistant Provincial Prosecutor to appear in his behalf.

To prove her claim, respondent testified and presented the testimony of Dr. Michael Sionzon of
the Department of Psychiatry, University of the Philippines-Philippine General Hospital. Dr. Sionzon
issued a medical certificate stating that respondents condition is known as CAH. He explained that
genetically respondent is female but because her body secretes male hormones, her female organs did not
develop normally and she has two sex organs female and male. He testified that this condition is very
rare, that respondents uterus is not fully developed because of lack of female hormones, and that she has
no monthly period. He further testified that respondents condition is permanent and recommended the
change of gender because respondent has made up her mind, adjusted to her chosen role as male, and the
gender change would be advantageous to her.

The RTC granted respondents petition in a Decision dated January 12, 2005 which reads:

The Court is convinced that petitioner has satisfactorily shown that he is entitled
to the reliefs prayed [for]. Petitioner has adequately presented to the Court very clear and
convincing proofs for the granting of his petition. It was medically proven that petitioners
body produces male hormones, and first his body as well as his action and feelings are
that of a male. He has chosen to be male. He is a normal person and wants to be
acknowledged and identified as a male.

WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is

hereby ordered to make the following corrections in the birth [c]ertificate of Jennifer
Cagandahan upon payment of the prescribed fees:
 a) By changing the name from Jennifer Cagandahan to JEFF
CAGANDAHAN; and

b) By changing the gender from female to MALE.

It is likewise ordered that petitioners school records, voters registry, baptismal

certificate, and other pertinent records are hereby amended to conform with the foregoing
corrected data.

SO ORDERED.[3]

Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal of the
abovementioned ruling.

The issues raised by petitioner are:

THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING

THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT
HAVE NOT BEEN COMPLIED WITH; AND,

II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF
SEX OR GENDER IN THE BIRTH CERTIFICATE, WHILE RESPONDENTS
MEDICAL CONDITION, i.e., CONGENITAL ADRENAL HYPERPLASIA DOES NOT
MAKE HER A MALE.[4]

Simply stated, the issue is whether the trial court erred in ordering the correction of entries in the
birth certificate of respondent to change her sex or gender, from female to male, on the ground of her
medical condition known as CAH, and her name from Jennifer to Jeff, under Rules 103 and 108 of the
Rules of Court.

The OSG contends that the petition below is fatally defective for non-compliance with Rules 103
and 108 of the Rules of Court because while the local civil registrar is an indispensable party in a petition
for cancellation or correction of entries under Section 3, Rule 108 of the Rules of Court, respondents
petition before the court a quo did not implead the local civil registrar.[5] The OSG further contends
respondents petition is fatally defective since it failed to state that respondent is a bona fide resident of the
province where the petition was filed for at least three (3) years prior to the date of such filing as
mandated under Section 2(b), Rule 103 of the Rules of Court.[6] The OSG argues that Rule 108 does not
allow change of sex or gender in the birth certificate and respondents claimed medical condition known as
CAH does not make her a male.[7]

On the other hand, respondent counters that although the Local Civil Registrar of Pakil, Laguna
was not formally named a party in the Petition for Correction of Birth Certificate, nonetheless the Local
Civil Registrar was furnished a copy of the Petition, the Order to publish on December 16, 2003 and all
pleadings, orders or processes in the course of the proceedings,[8] respondent is actually a male person and
hence his birth certificate has to be corrected to reflect his true sex/gender,[9] change of sex or gender is
allowed under Rule 108,[10] and respondent substantially complied with the requirements of Rules 103 and
108 of the Rules of Court.[11]

Rules 103 and 108 of the Rules of Court provide:

Rule 103
CHANGE OF NAME
SECTION 1. Venue. A person desiring to change his name shall present the petition to
the Regional Trial Court of the province in which he resides, [or, in the City of Manila, to
the Juvenile and Domestic Relations Court].

SEC. 2. Contents of petition. A petition for change of name shall be signed and verified
by the person desiring his name changed, or some other person on his behalf, and shall
set forth:

(a) That the petitioner has been a bona fide resident of the province where the
petition is filed for at least three (3) years prior to the date of such filing;

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

(c) The name asked for.

SEC. 3. Order for hearing. If the petition filed is sufficient in form and substance, the
court, by an order reciting the purpose of the petition, shall fix a date and place for the
hearing thereof, and shall direct that a copy of the order be published before the hearing
at least once a week for three (3) successive weeks in some newspaper of general
circulation published in the province, as the court shall deem best. The date set for the
hearing shall not be within thirty (30) days prior to an election nor within four (4) months
after the last publication of the notice.

SEC. 4. Hearing. Any interested person may appear at the hearing and oppose the
petition. The Solicitor General or the proper provincial or city fiscal shall appear on
behalf of the Government of the Republic.

SEC. 5. Judgment. Upon satisfactory proof in open court on the date fixed in the order
that such order has been published as directed and that the allegations of the petition are
true, the court shall, if proper and reasonable cause appears for changing the name of the
petitioner, adjudge that such name be changed in accordance with the prayer of the
petition.

SEC. 6. Service of judgment. Judgments or orders rendered in connection with this rule
shall be furnished the civil registrar of the municipality or city where the court issuing the
same is situated, who shall forthwith enter the same in the civil register.

Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
 SECTION 1. Who may file petition. Any person interested in any act, event, order or
decree concerning the civil status of persons which has been recorded in the civil register,
may file a verified petition for the cancellation or correction of any entry relating thereto,
with the Regional Trial Court of the province where the corresponding civil registry is
located.

SEC. 2. Entries subject to cancellation or correction. Upon good and valid grounds, the
following entries in the civil register may be cancelled or corrected: (a) births; (b)
marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f)
judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions;
(i) acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery
of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary
emancipation of a minor; and (o) changes of name.

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

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

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

SEC. 5. Opposition. The civil registrar and any person having or claiming any interest
under the entry whose cancellation or correction is sought may, within fifteen (15) days
from notice of the petition, or from the last date of publication of such notice, file his
opposition thereto.

SEC. 6. Expediting proceedings. The court in which the proceedings is brought may
make orders expediting the proceedings, and may also grant preliminary injunction for
the preservation of the rights of the parties pending such proceedings.

SEC. 7. Order. After hearing, the court may either dismiss the petition or issue an order
granting the cancellation or correction prayed for. In either case, a certified copy of the
judgment shall be served upon the civil registrar concerned who shall annotate the same
in his record.

The OSG argues that the petition below is fatally defective for non-compliance with Rules 103
and 108 of the Rules of Court because respondents petition did not implead the local civil
registrar. Section 3, Rule 108 provides that the civil registrar and all persons who have or claim any
interest which would be affected thereby shall be made parties to the proceedings.Likewise, the local civil
registrar is required to be made a party in a proceeding for the correction of name in the civil registry. He
is an indispensable party without whom no final determination of the case can be had. [12] Unless all
possible indispensable parties were duly notified of the proceedings, the same shall be considered as
falling much too short of the requirements of the rules.[13] The corresponding petition should also implead
as respondents the civil registrar and all other persons who may have or may claim to have any interest
that would be affected thereby.[14] Respondent, however, invokes Section 6,[15] Rule 1 of the Rules of
Court which states that courts shall construe the Rules liberally to promote their objectives of securing to
the parties a just, speedy and inexpensive disposition of the matters brought before it. We agree that there
is substantial compliance with Rule 108 when respondent furnished a copy of the petition to the local civil
registrar.

The determination of a persons sex appearing in his birth certificate is a legal issue and the court
must look to the statutes. In this connection, Article 412 of the Civil Code provides:

ART. 412. No entry in a civil register shall be changed or corrected without a judicial
order.

Together with Article 376[16] of the Civil Code, this provision was amended by Republic Act No.
[17]
9048 in so far as clerical or typographical errors are involved. The correction or change of such
matters can now be made through administrative proceedings and without the need for a judicial order. In
effect, Rep. Act No. 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of
such errors. Rule 108 now applies only to substantial changes and corrections in entries in the civil
register.[18]

Under Rep. Act No. 9048, a correction in the civil registry involving the change of sex is not a
mere clerical or typographical error. It is a substantial change for which the applicable procedure is Rule
108 of the Rules of Court.[19]

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the
Rules of Court are those provided in Articles 407 and 408 of the Civil Code:

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall
be recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage;
(6) judgments declaring marriages void from the beginning; (7) legitimations; (8)
adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12)
recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even
those that occur after birth.[20]

Respondent undisputedly has CAH. This condition causes the early or inappropriate appearance
of male characteristics. A person, like respondent, with this condition produces too much androgen, a
male hormone. A newborn who has XX chromosomes coupled with CAH usually has a (1) swollen
clitoris with the urethral opening at the base, an ambiguous genitalia often appearing more male than
female; (2) normal internal structures of the female reproductive tract such as the ovaries, uterus and
fallopian tubes; as the child grows older, some features start to appear male, such as deepening of the
voice, facial hair, and failure to menstruate at puberty. About 1 in 10,000 to 18,000 children are born with
CAH.

CAH is one of many conditions[21] that involve intersex anatomy. During the twentieth century,
medicine adopted the term intersexuality to apply to human beings who cannot be classified as either
male or female.[22] The term is now of widespread use. According to Wikipedia, intersexuality is the state
of a living thing of a gonochoristic species whose sex chromosomes, genitalia, and/or secondary sex
characteristics are determined to be neither exclusively male nor female. An organism with intersex may
have biological characteristics of both male and female sexes.

Intersex individuals are treated in different ways by different cultures. In most

societies, intersex individuals have been expected to conform to either a male or female gender
role.[23] Since the rise of modern medical science in Western societies, some intersex people with
ambiguous external genitalia have had their genitalia surgically modified to resemble either male or
female genitals.[24] More commonly, an intersex individual is considered as suffering from a disorder
which is almost always recommended to be treated, whether by surgery and/or by taking lifetime
medication in order to mold the individual as neatly as possible into the category of either male or female.

In deciding this case, we consider the compassionate calls for recognition of the various degrees
of intersex as variations which should not be subject to outright denial. It has been suggested that there is
some middle ground between the sexes, a no-mans land for those individuals who are neither truly male
nor truly female.[25] The current state of Philippine statutes apparently compels that a person be classified
either as a male or as a female, but this Court is not controlled by mere appearances when nature itself
fundamentally negates such rigid classification.

In the instant case, if we determine respondent to be a female, then there is no basis for a change
in the birth certificate entry for gender. But if we determine, based on medical testimony and scientific
development showing the respondent to be other than female, then a change in the

subjects birth certificate entry is in order.

Biologically, nature endowed respondent with a mixed (neither consistently and categorically
female nor consistently and categorically male) composition. Respondent has female (XX)
chromosomes. However, respondents body system naturally produces high levels of male hormones
(androgen). As a result, respondent has ambiguous genitalia and the phenotypic features of a male.

Ultimately, we are of the view that where the person is biologically or naturally intersex the
determining factor in his gender classification would be what the individual, like respondent, having
reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as
a male and considering that his body produces high levels of male hormones (androgen) there is
preponderant biological support for considering him as being male. Sexual development in cases
of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender
of such persons, like respondent, is fixed.
 Respondent here has simply let nature take its course and has not taken unnatural steps to arrest
or interfere with what he was born with. And accordingly, he has already ordered his life to that of a
male. Respondent could have undergone treatment and taken steps, like taking lifelong medication, [26] to
force his body into the categorical mold of a female but he did not. He chose not to do so. Nature has
instead taken its due course in respondents development to reveal more fully his male characteristics.

In the absence of a law on the matter, the Court will not dictate on respondent concerning a
matter so innately private as ones sexuality and lifestyle preferences, much less on whether or not to
undergo medical treatment to reverse the male tendency due to CAH. The Court will not consider
respondent as having erred in not choosing to undergo treatment in order to become or remain as a
female. Neither will the Court force respondent to undergo treatment and to take medication in order to fit
the mold of a female, as society commonly currently knows this gender of the human species. Respondent
is the one who has to live with his intersex anatomy. To him belongs the human right to the pursuit of
happiness and of health. Thus, to him should belong the primordial choice of what courses of action to
take along the path of his sexual development and maturation. In the absence of evidence that respondent
is an incompetent[27] and in the absence of evidence to show that classifying respondent as a male will
harm other members of society who are equally entitled to protection under the law, the Court affirms as
valid and justified the respondents position and his personal judgment of being a male.

In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an
individual deals with what nature has handed out. In other words, we respect respondents congenital
condition and his mature decision to be a male. Life is already difficult for the ordinary person. We
cannot but respect how respondent deals with his unordinary state and thus help make his life easier,
considering the unique circumstances in this case.

As for respondents change of name under Rule 103, this Court has held that a change of name is
not a matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the
consequences that will follow.[28] The trial courts grant of respondents change of name from Jennifer to
Jeff implies a change of a feminine name to a masculine name. Considering the consequence that
respondents change of name merely recognizes his preferred gender, we find merit in respondents change
of name. Such a change will conform with the change of the entry in his birth certificate from female to
male.

WHEREFORE, the Republics petition is DENIED. The Decision dated January 12, 2005 of the
Regional Trial Court, Branch 33 of Siniloan, Laguna, is AFFIRMED. No pronouncement as to costs.

SO ORDERED.

LEONARDO A. QUISUMBING

Associate Justice
WE CONCUR:

CONCHITA CARPIO MORALES

Associate Justice

DANTE O. TINGA PRESBITERO J. VELASCO, JR.

Associate Justice 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 Courts Division.
 LEONARDO A. QUISUMBING

Associate Justice

Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons 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 Courts Division.

REYNATO S. PUNO

Chief Justice

[1]
Rollo, pp. 29-32. Penned by Judge Florenio P. Bueser.
[2]
Id. at 33-37.
[3]
Id. at 31-32.
[4]
Id. at 97.
[5]
Id. at 99.
[6]
Id. at 103.
[7]
Id. at 104.
[8]
Id. at 136.
[9]
Id. at 127.
[10]
Id. at 134.
[11]
Id. at 136.
[12]
Republic v. Court of Appeals, G.R. No. 103695, March 15, 1996, 255 SCRA 99, 106.
[13]
Ceruila v. Delantar, G.R. No. 140305, December 9, 2005, 477 SCRA 134, 147.
[14]
Republic v. Benemerito, G.R. No. 146963, March 15, 2004, 425 SCRA 488, 492.
[15]
SEC. 6. Construction.- These Rules shall be liberally construed in order to promote their objective of
securing a just, speedy and inexpensive disposition of every action and proceeding.
[16]
Art. 376. No person can change his name or surname without judicial authority.
[17]
AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE CONSUL
GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY
AND/OR CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL REGISTRAR WITHOUT
NEED OF A JUDICIAL ORDER, AMENDING FOR THIS PURPOSE ARTICLES 376 AND 412
OF THE CIVIL CODE OF THE PHILIPPINES. APPROVED, MARCH 22, 2001.
[18]
Silverio v. Republic of the Philippines, G.R. No. 174689, October 19, 2007, 537 SCRA 373, 388.
[19]
Id. at 389.
[20]
Id. at 389.
[21]
(1) 5-alpha reductase deficiency; (2) androgen insensitivity syndrome; (3) aphallia; (4) clitoromegaly;
(5) congenital adrenal hyperplasia; (6) gonadal dysgenesis (partial & complete); (7) hypospadias;
(8) Kallmann syndrome; (9) Klinefelter syndrome; (10)micropenis; (11) mosaicism involving sex
chromosomes; (12) MRKH (mullerian agenesis; vaginal agenesis; congenital absence of vagina);
(13) ovo-testes (formerly called true hermaphroditism); (14) partial androgen insensitivity syndrome;
(15) progestin induced virilization; (16) Swyer syndrome; (17) Turner syndrome.
[Intersexuality <http://en.wikipedia.org/wiki/Intersexual> (visited August 15, 2008).]
[22]
Intersexuality <http://en.wikipedia.org/wiki/Intersexual> (visited August 15, 2008).
[23]
Intersexuality <http://en.wikipedia.org/wiki/Intersexual> (visited August 15, 2008), citing Gagnon and
Simon 1973.
[24]
Intersexuality <http://en.wikipedia.org/wiki/Intersexual> (visited August 15, 2008).
[25]
M.T. v. J.T. 140 N.J. Super 77 355 A. 2d 204.
[26]
The goal of treatment is to return hormone levels to normal. This is done by taking a form
of cortisol (dexamethasone), fludrocortisone, or hydrocortisone) every day. Additional doses of
medicine are needed during times of stress, such as severe illness or surgery.
xxxx
Parents of children with congenital adrenal hyperplasia should be aware of the side effects of steroid
therapy. They should report signs of infection and stress to their health care provider because
increases in medication may be required. In additional, steroid medications cannot be stopped
suddenly, or adrenal insufficiency will result.
xxxx
The outcome is usually associated with good health, but short stature may result even with
treatment. Males have normal fertility. Females may have a smaller opening of the vagina and lower
fertility. Medication to treat this disorder must be continued for life.(Congenital Adrenal Hyperplasia
<http://www.nlm.nih.gov/medlineplus/encyclopedia.html>.)
[27]
The word incompetent includes persons suffering the penalty of civil interdiction or who are
hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those who are of
unsound mind, even though they have lucid intervals, and persons not being of unsound mind, but by
reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of
themselves and manage their property, becoming thereby an easy prey for deceit and exploitation.
(See Sec. 2 of Rule 92 of the Rules of Court)
[28]
Yu v. Republic of the Philippines, 123 Phil. 1106, 1110 (1966).
Republic vs Cagandahan
Republic vs. Cagandahan
GR. No. 166676, September 12, 2008

FACTS:

Jennifer Cagandahan was registered as a female in her Certificate of Live Birth. During her childhood
years, she suffered from clitoral hypertrophy and was later on diagnosed that her ovarian structures had
minimized. She likewise has no breast nor menstruation. Subsequently, she was diagnosed of having
Congenital Adrenal Hyperplasia (CAH), a condition where those afflicted possess secondary male
characteristics because of too much secretion of male hormones, androgen. According to her, for all
interests and appearances as well as in mind and emotion, she has become a male person. She filed a
petition at RTC Laguna for Correction of Entries in her Birth Certificate such that her gender or sex be
changed to male and her first name be changed to Jeff.

ISSUE: WON correction of entries in her birth certificate should be granted.

HELD:

The Court considered the compassionate calls for recognition of the various degrees of intersex as
variations which should not be subject to outright denial. SC is of the view that where the person is
biologically or naturally intersex the determining factor in his gender classification would be what the
individual, having reached the age of majority, with good reason thinks of his/her sex. As in this case,
respondent, thinks of himself as a male and considering that his body produces high levels of male
hormones, there is preponderant biological support for considering him as being a male. Sexual
development in cases of intersex persons makes the gender classification at birth inconclusive. It is at
maturity that the gender of such persons, like respondent, is fixed.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 174689 October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, respondent.

DECISION

CORONA, J.:

When God created man, He made him in the likeness of God; He created them male and female.
(Genesis 5:1-2)
 Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from
inside the bamboo. "Oh North Wind! North Wind! Please let us out!," the voices said. She pecked
the reed once, then twice. All of a sudden, the bamboo cracked and slit open. Out came two
human beings; one was a male and the other was a female. Amihan named the man "Malakas"
(Strong) and the woman "Maganda" (Beautiful). (The Legend of Malakas and Maganda)

When is a man a man and when is a woman a woman? In particular, does the law recognize the changes
made by a physician using scalpel, drugs and counseling with regard to a persons sex? May a person
successfully petition for a change of name and sex appearing in the birth certificate to reflect the result of
a sex reassignment surgery?

On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his
first name and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8. The petition,
docketed as SP Case No. 02-105207, impleaded the civil registrar of Manila as respondent.

Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines
Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as "Rommel Jacinto Dantes
Silverio" in his certificate of live birth (birth certificate). His sex was registered as "male."

He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a
female" and that he had always identified himself with girls since childhood.1 Feeling trapped in a mans
body, he consulted several doctors in the United States. He underwent psychological examination,
hormone treatment and breast augmentation. His attempts to transform himself to a "woman" culminated
on January 27, 2001 when he underwent sex reassignment surgery2 in Bangkok, Thailand. He was
thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the
Philippines, who issued a medical certificate attesting that he (petitioner) had in fact undergone the
procedure.

From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to have
his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from "male" to
"female."

An order setting the case for initial hearing was published in the Peoples Journal Tonight, a newspaper of
general circulation in Metro Manila, for three consecutive weeks.3 Copies of the order were sent to the
Office of the Solicitor General (OSG) and the civil registrar of Manila.

On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the
petition was made.

During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American
fianc, Richard P. Edel, as witnesses.

On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions read:

Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or
for any unlawful motive but solely for the purpose of making his birth records compatible with
his present sex.

The sole issue here is whether or not petitioner is entitled to the relief asked for.
 The [c]ourt rules in the affirmative.

Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with
the principles of justice and equity. With his sexual [re-assignment], petitioner, who has always
felt, thought and acted like a woman, now possesses the physique of a female. Petitioners
misfortune to be trapped in a mans body is not his own doing and should not be in any way taken
against him.

Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or the
community in granting the petition. On the contrary, granting the petition would bring the much-
awaited happiness on the part of the petitioner and her [fianc] and the realization of their dreams.

Finally, no evidence was presented to show any cause or ground to deny the present petition
despite due notice and publication thereof. Even the State, through the [OSG] has not seen fit to
interpose any [o]pposition.

WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil
Registrar of Manila to change the entries appearing in the Certificate of Birth of [p]etitioner,
specifically for petitioners first name from "Rommel Jacinto" to MELY and petitioners gender
from "Male" to FEMALE. 5

On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for
certiorari in the Court of Appeals.6 It alleged that there is no law allowing the change of entries in the
birth certificate by reason of sex alteration.

On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It ruled that
the trial courts decision lacked legal basis. There is no law allowing the change of either name or sex in
the certificate of birth on the ground of sex reassignment through surgery. Thus, the Court of Appeals
granted the Republics petition, set aside the decision of the trial court and ordered the dismissal of SP
Case No. 02-105207. Petitioner moved for reconsideration but it was denied.9 Hence, this petition.

Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under
Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048.10

The petition lacks merit.

A Persons First Name Cannot Be Changed On the Ground of Sex Reassignment

Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As
found by the trial court:

Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or
for any unlawful motive but solely for the purpose of making his birth records compatible
with his present sex. (emphasis supplied)

Petitioner believes that after having acquired the physical features of a female, he became entitled to the
civil registry changes sought. We disagree.
The State has an interest in the names borne by individuals and entities for purposes of identification. 11 A
change of name is a privilege, not a right.12 Petitions for change of name are controlled by statutes.13 In
this connection, Article 376 of the Civil Code provides:

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

This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of RA
9048 provides:

SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or
Nickname. No entry in a civil register shall be changed or corrected without a judicial order,
except for clerical or typographical errors and change of first name or nickname which can be
corrected or changed by the concerned city or municipal civil registrar or consul general in
accordance with the provisions of this Act and its implementing rules and regulations.

RA 9048 now governs the change of first name.14 It vests the power and authority to entertain petitions
for change of first name to the city or municipal civil registrar or consul general concerned. Under the
law, therefore, jurisdiction over applications for change of first name is now primarily lodged with the
aforementioned administrative officers. The intent and effect of the law is to exclude the change of first
name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries
in the Civil Registry) of the Rules of Court, until and unless an administrative petition for change of name
is first filed and subsequently denied.15 It likewise lays down the corresponding venue,16 form17 and
procedure. In sum, the remedy and the proceedings regulating change of first name are primarily
administrative in nature, not judicial.

RA 9048 likewise provides the grounds for which change of first name may be allowed:

SECTION 4. Grounds for Change of First Name or Nickname. The petition for change of first
name or nickname may be allowed in any of the following cases:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or
extremely difficult to write or pronounce;

(2) The new first name or nickname has been habitually and continuously used by the petitioner
and he has been publicly known by that first name or nickname in the community; or

(3) The change will avoid confusion.

Petitioners basis in praying for the change of his first name was his sex reassignment. He intended to
make his first name compatible with the sex he thought he transformed himself into through surgery.
However, a change of name does not alter ones legal capacity or civil status.18 RA 9048 does not
sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion,
changing petitioners first name for his declared purpose may only create grave complications in the civil
registry and the public interest.

Before a person can legally change his given name, he must present proper or reasonable cause or any
compelling reason justifying such change.19 In addition, he must show that he will be prejudiced by the
use of his true and official name.20 In this case, he failed to show, or even allege, any prejudice that he
might suffer as a result of using his true and official name.
In sum, the petition in the trial court in so far as it prayed for the change of petitioners first name was not
within that courts primary jurisdiction as the petition should have been filed with the local civil registrar
concerned, assuming it could be legally done. It was an improper remedy because the proper remedy was
administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as the proper
venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More
importantly, it had no merit since the use of his true and official name does not prejudice him at all. For
all these reasons, the Court of Appeals correctly dismissed petitioners petition in so far as the change of
his first name was concerned.

No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex
Reassignment

The determination of a persons sex appearing in his birth certificate is a legal issue and the court must
look to the statutes.21 In this connection, Article 412 of the Civil Code provides:

ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.

Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as clerical
or typographical errors are involved. The correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In effect, RA 9048 removed from the
ambit of Rule 108 of the Rules of Court the correction of such errors.22 Rule 108 now applies only to
substantial changes and corrections in entries in the civil register.23

Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:

SECTION 2. Definition of Terms. As used in this Act, the following terms shall mean:

xxx xxx xxx

(3) "Clerical or typographical error" refers to a mistake committed in the performance of

clerical work in writing, copying, transcribing or typing an entry in the civil register that
is harmless and innocuous, such as misspelled name or misspelled place of birth or the
like, which is visible to the eyes or obvious to the understanding, and can be corrected or
changed only by reference to other existing record or records: Provided, however, That
no correction must involve the change of nationality, age, status or sex of the petitioner.
(emphasis supplied)

Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules
of Court.

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of
Court are those provided in Articles 407 and 408 of the Civil Code:24

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be
recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

 (1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those
that occur after birth.25 However, no reasonable interpretation of the provision can justify the conclusion
that it covers the correction on the ground of sex reassignment.

To correct simply means "to make or set aright; to remove the faults or error from" while to change
means "to replace something with something else of the same kind or with something that serves as a
substitute."26 The birth certificate of petitioner contained no error. All entries therein, including those
corresponding to his first name and sex, were all correct. No correction is necessary.

Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as
legitimations, acknowledgments of illegitimate children and naturalization), events (such as births,
marriages, naturalization and deaths) and judicial decrees (such as legal separations, annulments of
marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of citizenship,
civil interdiction, judicial determination of filiation and changes of name). These acts, events and judicial
decrees produce legal consequences that touch upon the legal capacity, status and nationality of a person.
Their effects are expressly sanctioned by the laws. In contrast, sex reassignment is not among those acts
or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or
impliedly.

"Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities and
incapacities) of a person in view of his age, nationality and his family membership.27

The status of a person in law includes all his personal qualities and relations, more or less
permanent in nature, not ordinarily terminable at his own will, such as his being legitimate or
illegitimate, or his being married or not. The comprehensive term status include such matters
as the beginning and end of legal personality, capacity to have rights in general, family relations,
and its various aspects, such as birth, legitimation, adoption, emancipation, marriage, divorce, and
sometimes even succession.28 (emphasis supplied)

A persons sex is an essential factor in marriage and family relations. It is a part of a persons legal
capacity and civil status. In this connection, Article 413 of the Civil Code provides:

ART. 413. All other matters pertaining to the registration of civil status shall be governed by
special laws.

But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal
to petitioners cause.

Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:

SEC. 5. Registration and certification of births. The declaration of the physician or midwife in
attendance at the birth or, in default thereof, the declaration of either parent of the newborn child,
shall be sufficient for the registration of a birth in the civil register. Such declaration shall be
exempt from documentary stamp tax and shall be sent to the local civil registrar not later than
 thirty days after the birth, by the physician or midwife in attendance at the birth or by either
parent of the newborn child.

In such declaration, the person above mentioned shall certify to the following facts: (a) date and
hour of birth; (b) sex and nationality of infant; (c) names, citizenship and religion of parents or,
in case the father is not known, of the mother alone; (d) civil status of parents; (e) place where the
infant was born; and (f) such other data as may be required in the regulations to be issued.

xxx xxx xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the
time of birth.29 Thus, the sex of a person is determined at birth, visually done by the birth attendant (the
physician or midwife) by examining the genitals of the infant. Considering that there is no law legally
recognizing sex reassignment, the determination of a persons sex made at the time of his or her birth, if
not attended by error,30is immutable.31

When words are not defined in a statute they are to be given their common and ordinary meaning in the
absence of a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil
Register Law and laws concerning the civil registry (and even all other laws) should therefore be
understood in their common and ordinary usage, there being no legislative intent to the contrary. In this
connection, sex is defined as "the sum of peculiarities of structure and function that distinguish a male
from a female"32 or "the distinction between male and female."33 Female is "the sex that produces ova or
bears young"34 and male is "the sex that has organs to produce spermatozoa for fertilizing ova." 35 Thus,
the words "male" and "female" in everyday understanding do not include persons who have undergone
sex reassignment. Furthermore, "words that are employed in a statute which had at the time a well-known
meaning are presumed to have been used in that sense unless the context compels to the contrary."36 Since
the statutory language of the Civil Register Law was enacted in the early 1900s and remains unchanged, it
cannot be argued that the term "sex" as used then is something alterable through surgery or something
that allows a post-operative male-to-female transsexual to be included in the category "female."

For these reasons, while petitioner may have succeeded in altering his body and appearance through the
intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for
that reason. Thus, there is no legal basis for his petition for the correction or change of the entries in his
birth certificate.

Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of
Equity

The trial court opined that its grant of the petition was in consonance with the principles of justice and
equity. It believed that allowing the petition would cause no harm, injury or prejudice to anyone. This is
wrong.

The changes sought by petitioner will have serious and wide-ranging legal and public policy
consequences. First, even the trial court itself found that the petition was but petitioners first step towards
his eventual marriage to his male fianc. However, marriage, one of the most sacred social institutions, is
a special contract of permanent union between a man and a woman.37 One of its essential requisites is
the legal capacity of the contracting parties who must be a male and a female.38 To grant the changes
sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family
relations. It will allow the union of a man with another man who has undergone sex reassignment (a male-
to-female post-operative transsexual). Second, there are various laws which apply particularly to women
such as the provisions of the Labor Code on employment of women,39 certain felonies under the Revised
Penal Code40 and the presumption of survivorship in case of calamities under Rule 131 of the Rules of
Court,41 among others. These laws underscore the public policy in relation to women which could be
substantially affected if petitioners petition were to be granted.

It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render
judgment by reason of the silence, obscurity or insufficiency of the law." However, it is not a license for
courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not to make
or amend it.

In our system of government, it is for the legislature, should it choose to do so, to determine what
guidelines should govern the recognition of the effects of sex reassignment. The need for legislative
guidelines becomes particularly important in this case where the claims asserted are statute-based.

To reiterate, the statutes define who may file petitions for change of first name and for correction or
change of entries in the civil registry, where they may be filed, what grounds may be invoked, what proof
must be presented and what procedures shall be observed. If the legislature intends to confer on a person
who has undergone sex reassignment the privilege to change his name and sex to conform with his
reassigned sex, it has to enact legislation laying down the guidelines in turn governing the conferment of
that privilege.

It might be theoretically possible for this Court to write a protocol on when a person may be recognized
as having successfully changed his sex. However, this Court has no authority to fashion a law on that
matter, or on anything else. The Court cannot enact a law where no law exists. It can only apply or
interpret the written word of its co-equal branch of government, Congress.

Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the]
realization of their dreams." No argument about that. The Court recognizes that there are people whose
preferences and orientation do not fit neatly into the commonly recognized parameters of social
convention and that, at least for them, life is indeed an ordeal. However, the remedies petitioner seeks
involve questions of public policy to be addressed solely by the legislature, not by the courts.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

Puno, C.J., Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, JJ., concur.

Footnotes

1
Petitioner went for his elementary and high school, as well as his Bachelor of Science in
Statistics and Master of Arts, in the University of the Philippines. He took up Population Studies
Program, Master of Arts in Sociology and Doctor of Philosophy in Sociology at the University of
Hawaii, in Manoa, Hawaii, U.S.A. Rollo, p. 48.
2
This consisted of "penectomy [surgical removal of penis] bilateral oschiectomy [or orchiectomy
which is the surgical excision of the testes] penile skin inversion vaginoplasty [plastic surgery of
the vagina] clitoral hood reconstruction and augmentation mammoplasty [surgical enhancement
of the size and shape of the breasts]." Id.

3
On January 23, 2003, January 30, 2003 and February 6, 2003.

4
Penned by Judge Felixberto T. Olalia, Jr. Rollo, pp. 51-53.

5
Id., pp. 52-53 (citations omitted).

6
Docketed as CA-G.R. SP No. 78824.

7
Special Sixth Division.

8
Penned by Associate Justice Arcangelita M. Romilla-Lontok with Associate Justices Marina L.
Buzon and Aurora Santiago-Lagman concurring. Rollo, pp. 25-33.

9
Resolution dated September 14, 2006, id., pp. 45-46.

10
An Act Authorizing the City or Municipal Civil Registrar or the Consul General to Correct a
Clerical or Typographical Error in an Entry and/or Change of First Name or Nickname in the
Civil Register Without Need of a Judicial Order, Amending for the Purpose Articles 376 and 412
of the Civil Code of the Philippines.

11
Wang v. Cebu City Civil Registrar, G.R. No. 159966, 30 March 2005, 454 SCRA 155.

12
Id.

13
K v. Health Division, Department of Human Resources, 277 Or. 371, 560 P.2d 1070 (1977).

14
Under Section 2 (6) of RA 9048, "first name" refers to a name or nickname given to a person
which may consist of one or more names in addition to the middle names and last names. Thus,
the term "first name" will be used here to refer both to first name and nickname.

15
The last paragraph of Section 7 of RA 9048 provides:

SECTION 7. Duties and Powers of the Civil Registrar General. xxx xxx xxx

Where the petition is denied by the city or municipal civil registrar or the consul general,
the petitioner may either appeal the decision to the civil registrar general or file the
appropriate petition with the proper court.

16
SECTION 3. Who May File the Petition and Where. Any person having direct and personal
interest in the correction of a clerical or typographical error in an entry and/or change of first
name or nickname in the civil register may file, in person, a verified petition with the local civil
registry office of the city or municipality where the record being sought to be corrected or
changed is kept.
In case the petitioner has already migrated to another place in the country and it would not be
practical for such party, in terms of transportation expenses, time and effort to appear in person
before the local civil registrar keeping the documents to be corrected or changed, the petition may
be filed, in person, with the local civil registrar of the place where the interested party is presently
residing or domiciled. The two (2) local civil registrars concerned will then communicate to
facilitate the processing of the petition.

Citizens of the Philippines who are presently residing or domiciled in foreign countries may file
their petition, in person, with the nearest Philippine Consulates.

The petitions filed with the city or municipal civil registrar or the consul general shall be
processed in accordance with this Act and its implementing rules and regulations.

All petitions for the clerical or typographical errors and/or change of first names or nicknames
may be availed of only once.

17
SECTION 5. Form and Contents of the Petition. The petition shall be in the form of an
affidavit, subscribed and sworn to before any person authorized by the law to administer oaths.
The affidavit shall set forth facts necessary to establish the merits of the petition and shall show
affirmatively that the petitioner is competent to testify to the matters stated. The petitioner shall
state the particular erroneous entry or entries, which are sought to be corrected and/or the change
sought to be made.

The petition shall be supported with the following documents:

(1) A certified true machine copy of the certificate or of the page of the registry book
containing the entry or entries sought to be corrected or changed;

(2) At least two (2) public or private documents showing the correct entry or entries upon
which the correction or change shall be based; and

(3) Other documents which the petitioner or the city or municipal civil registrar or the
consul general may consider relevant and necessary for the approval of the petition.

In case of change of first name or nickname, the petition shall likewise be supported with the
documents mentioned in the immediately preceding paragraph. In addition, the petition shall be
published at least once a week for two (2) consecutive weeks in a newspaper of general
circulation. Furthermore, the petitioner shall submit a certification from the appropriate law
enforcement agencies that he has no pending case or no criminal record.

18
Republic v. Court of Appeals, G.R. No. 97906, 21 May 1992, 209 SCRA 189.

19
Supra note 11.

20
Id.

21
In re Ladrach, 32 Ohio Misc.2d 6, 513 N.E.2d 828 (1987).

22
Lee v. Court of Appeals, 419 Phil. 392 (2001).
23
Id.

24
Co v. Civil Register of Manila, G.R. No. 138496, 23 February 2004, 423 SCRA 420.

25
Id.

26
Id.

27
Beduya v. Republic of the Philippines, 120 Phil. 114 (1964).

28
Salonga, Jovito, Private International Law, 1995 Edition, Rex Bookstore, p. 238.

29
This, of course, should be taken in conjunction with Articles 407 and 412 of the Civil Code
which authorizes the recording of acts, events and judicial decrees or the correction or change of
errors including those that occur after birth. Nonetheless, in such cases, the entries in the
certificates of birth are not be corrected or changed. The decision of the court granting the
petition shall be annotated in the certificates of birth and shall form part of the civil register in the
Office of the Local Civil Registrar. (Co v. Civil Register of Manila, supra note 24)

30
The error pertains to one where the birth attendant writes "male" or "female" but the genitals of
the child are that of the opposite sex.

31
Moreover, petitioners female anatomy is all man-made. The body that he inhabits is a male
body in all aspects other than what the physicians have supplied.

32
Blacks Law Dictionary, 8th edition (2004), p.1406.

33
Words and Phrases, volume 39, Permanent Edition, p. 106.

34
In re Application for Marriage License for Nash, 2003-Ohio-7221 (No. 2002-T-0149, slip op.,
Not Reported in N.E.2d, 2003 WL 23097095 (Ohio App. 11 Dist., December 31, 2003), citing
Websters II New College Dictionary (1999).

35
Id.

36
Standard Oil Co. v. United States, 221 U.S. 1 (1911), 31 S.Ct. 502, 55 L.Ed. 619.

37
Article 1, Family Code.

38
Article 2(1), Id.

39
These are Articles 130 to 138 of the Labor Code which include nightwork prohibition, facilities
for women, prohibition on discrimination and stipulation against marriage, among others.

40
These include Article 333 on adultery, Articles 337 to 339 on qualified seduction, simple
seduction and acts of lasciviousness with the consent of the offended party and Articles 342 and
343 on forcible and consented abduction, among others.

41
Section 3(jj)(4).
Petitioner: Rommel Jacinto Dantes Silverio

Respondent: Republic of the Philippines

Ponente: J. Corona

Facts:

On June 4, 2003, the trial court rendered a decision in favor of petitioner. Its relevant portions read:

(a) Petitioner filed to present petition solely for the purpose of making his birth records compatible
with his present sex;

(b) Granting the petition would be more in consonance with the principles of justice and equity.

(c) Petitioners misfortune to be trapped in a mans body is not his own doing and should not be in any
way taken against him.

(d) The court believes that no harm, injury or prejudice will be caused to anybody or the community in
granting the petition as it would only grant the petitioner his much awaited happiness and the realization
of their (his fiance) dreams.

On August 18, 2003, the Republic, thru the OSG, filed a petition for certiorari in the CA. On February
23, 2006, the CA rendered a decision in favor of the Republic, thus, this petition.

Issue:

The issue raised in this petition is:

(1) Whether or not the change of the petitioners name and sex in his birth certificate are allowed under
Articles 4007 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048.

Held:

(1) No. It is not allowed. A persons name cannot be changed on the ground of sex reassignment. No
law allows the change of entry in the birth certificate as to sex on the ground of sex reassignment. A
change of name is a privilege, not a right. Statutes control petitions for change of name. Neither may
entries in the birth certificate as to first name or sex be changed on the ground of equity. Article 376 of
the Civil Code provides that no person can change his name or surname without judicial
authority. Article 412 provides that no entry in the civil register shall be changed or corrected without a
judicial order.

The petition is DENIED.