G.R. No.

86355 May 31, 1990

JOSE MODEQUILLO, petitioner,

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

Josefina Brandares-Almazan for petitioner.

ABC Law Offices for private respondents.

GANCAYCO, J.:

The issue in this petition is whether or not a final judgment of the Court of Appeals in an action for damages may be satisfied by way of
execution of a family home constituted under the Family Code.

The facts are undisputed.

On January 29, 1988, a judgment was rendered by the Court of Appeals in CA-G.R. CV No.
09218 entitled "Francisco Salinas, et al. vs. Jose Modequillo, et al.," the dispositive part of which
read as follows:

WHEREFORE, the decision under appeal should be, as it is hereby, reversed

and set aside. Judgment is hereby rendered finding the defendants-appellees
Jose Modequillo and Benito Malubay jointly and severally liable to plaintiffs-
appellants as hereinbelow set forth. Accordingly, defendants-appellees are
ordered to pay jointly and severally to:

1. Plaintiffs-appellants, the Salinas spouses:

a. the amount of P30,000.00 by way of compensation for the death of their son
Audie Salinas;

b. P10,000.00 for the loss of earnings by reason of the death of said Audie
Salinas;

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

d. the sum of P5,000.00 by way of moral damages.

2. Plaintiffs-appellants Culan-Culan:

a. the sum of P5,000.00 for hospitalization expenses of Renato Culan- Culan;

and

b. P5,000.00 for moral damages.

3. Both plaintiff-appellants Salinas and Culan-Culan, P7,000.00 for attorney's

fees and litigation expenses.

All counterclaims and other claims are hereby dismissed. 1

The said judgment having become final and executory, a writ of execution was issued by the
Regional Trial Court of Davao City to satisfy the said judgment on the goods and chattels of the
defendants Jose Modequillo and Benito Malubay at Malalag, Davao del Sur.

On July 7, 1988, the sheriff levied on a parcel of residential land located at Poblacion Malalag,
Davao del Sur containing an area of 600 square meters with a market value of P34,550.00 and
assessed value of P7,570.00 per Tax Declaration No. 87008-01359, registered in the name of
Jose Modequillo in the office of the Provincial Assessor of Davao del Sur; and a parcel of
agricultural land located at Dalagbong Bulacan, Malalag, Davao del Sur containing an area of 3
hectares with a market value of P24,130.00 and assessed value of P9,650.00 per Tax
Declaration No. 87-08-01848 registered in the name of Jose Modequillo in the office of the
Provincial Assessor of Davao del Sur. 2

A motion to quash and/or to set aside levy of execution was filed by defendant Jose Modequillo
alleging therein that the residential land located at Poblacion Malalag is where the family home is
built since 1969 prior to the commencement of this case and as such is exempt from execution,
forced sale or attachment under Articles 152 and 153 of the Family Code except for liabilities
mentioned in Article 155 thereof, and that the judgment debt sought to be enforced against the
family home of defendant is not one of those enumerated under Article 155 of the Family Code.
As to the agricultural land although it is declared in the name of defendant it is alleged to be still
part of the public land and the transfer in his favor by the original possessor and applicant who
was a member of a cultural minority was not approved by the proper government agency. An
opposition thereto was filed by the plaintiffs.

In an order dated August 26, 1988, the trial court denied the motion. A motion for reconsideration
thereof was filed by defendant and this was denied for lack of merit on September 2, 1988.

Hence, the herein petition for review on certiorari wherein it is alleged that the trial court erred
and acted in excess of its jurisdiction in denying petitioner's motion to quash and/or to set aside
levy on the properties and in denying petitioner' motion for reconsideration of the order dated
August 26, 1988. Petitioner contends that only a question of law is involved in this petition. He
asserts that the residential house and lot was first occupied as his family residence in 1969 and
was duly constituted as a family home under the Family Code which took effect on August 4,
1988. Thus, petitioner argues that the said residential house and lot is exempt from payment of
the obligation enumerated in Article 155 of the Family Code; and that the decision in this case
pertaining to damages arising from a vehicular accident took place on March 16, 1976 and which
became final in 1988 is not one of those instances enumerated under Article 155 of the Family
Code when the family home may be levied upon and sold on execution. It is further alleged that
the trial court erred in holding that the said house and lot became a family home only on August
4, 1988 when the Family Code became effective, and that the Family Code cannot be interpreted
in such a way that all family residences are deemed to have been constituted as family homes at
the time of their occupancy prior to the effectivity of the said Code and that they are exempt from
execution for the payment of obligations incurred before the effectivity of said Code; and that it
also erred when it declared that Article 162 of the Family Code does not state that the provisions
of Chapter 2, Title V have a retroactive effect.

Articles 152 and 153 of the Family Code provide as follows:

Art. 152. The family home, constituted jointly by the husband and the wife or by
an unmarried head of a family, is the dwelling house where they and their family
reside, and the land on which it is situated.

Art. 153. The family home is deemed constituted on a house and lot from the time
it is occupied as a family residence. From the time of its constitution and so long
as any of its beneficiaries actually resides therein, the family home continues to
 be such and is exempt from execution, forced sale or attachment except as
hereinafter provided and to the extent of the value allowed by law.

Under the Family Code, a family home is deemed constituted on a house and lot from the time it
is occupied as a family residence. There is no need to constitute the same judicially or
extrajudicially as required in the Civil Code. If the family actually resides in the premises, it is,
therefore, a family home as contemplated by law. Thus, the creditors should take the necessary
precautions to protect their interest before extending credit to the spouses or head of the family
who owns the home.

Article 155 of the Family Code also provides as follows:

Art. 155. The family home shall be exempt from execution, forced sale or
attachment except:

(1) For non-payment of taxes;

(2) For debts incurred prior to the constitution of the family home;

(3) For debts secured by mortgages on the premises before or after such
constitution; and

(4) For debts due to laborers, mechanics, architects, builders, material men and
others who have rendered service or furnished material for the construction of the
building.

The exemption provided as aforestated is effective from the time of the constitution of the family
home as such, and lasts so long as any of its beneficiaries actually resides therein.

In the present case, the residential house and lot of petitioner was not constituted as a family
home whether judicially or extrajudicially under the Civil Code. It became a family home by
operation of law only under Article 153 of the Family Code. It is deemed constituted as a family
home upon the effectivity of the Family Code on August 3, 1988 not August 4, one year after its
publication in the Manila Chronicle on August 4, 1987 (1988 being a leap year).

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

Is the family home of petitioner exempt from execution of the money judgment aforecited No. The
debt or liability which was the basis of the judgment arose or was incurred at the time of the
vehicular accident on March 16, 1976 and the money judgment arising therefrom was rendered
by the appellate court on January 29, 1988. Both preceded the effectivity of the Family Code on
August 3, 1988. This case does not fall under the exemptions from execution provided in the
Family Code.
As to the agricultural land subject of the execution, the trial court correctly ruled that the levy to
be made by the sheriff shall be on whatever rights the petitioner may have on the land.

WHEREFORE, the petition is DISMISSED for lack of merit. No pronouncement as to costs.

SO ORDERED.

Narvasa (Chairman), Cruz and Medialdea, JJ., concur. Griño-Aquino, J., is on leave.

Footnotes

1 Madame Justice Lorna S. Lombosde la Fuente was the ponente concurred in

by Justices Antonio M. Martinez and Cecilio L. Pe.

2 Pages 18-21, Rollo.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 81552 May 28, 1990

DIONISIO FIESTAN and JUANITA ARCONADO, petitioners

vs.
COURT OF APPEALS; DEVELOPMENT BANK OF THE PHILIPPINES, LAOAG CITY
BRANCH; PHILIPPINE NATIONAL BANK, VIGAN BRANCH, ILOCOS SUR, FRANCISCO
PERIA and REGISTER OF DEEDS OF ILOCOS SUR, respondents.

Pedro Singson Reyes for petitioners.

The Chief Legal Counsel for PNB.

Public Assistance Office for Francisco Peria.

Ruben O. Fruto, Bonifacio M. Abad and David C. Frez for DBP Laoag Branch.

FERNAN, C.J.:

In this petition for review on certiorari, petitioners spouses Dionisio Fiestan and Juanita Arconada owners of a parcel of land (Lot No.
2B) situated in Ilocos Sur covered by TCT T-13218 which they mortgaged to the Development Bank of the Philippines (DBP) as security
for their P22,400.00 loan, seek the reversal of the decision of the Court of Appeals 1 dated June 5, 1987 affirming the dismissal of their
complaint filed against the Development Bank of the Philippines, Laoag City Branch, Philippine National Bank, Vigan Branch, Ilocos
Sur, Francisco Peria and the Register of Deeds of Ilocos Sur, for annulment of sale, mortgage, and cancellation of transfer certificates
of title.

Records show that Lot No. 2-B was acquired by the DBP as the highest bidder at a public
auction sale on August 6, 1979 after it was extrajudicially foreclosed by the DBP in accordance
with Act No. 3135, as amended by Act No. 4118, for failure of petitioners to pay their mortgage
indebtedness. A certificate of sale was subsequently issued by the Provincial Sheriff of Ilocos Sur
on the same day and the same was registered on September 28, 1979 in the Office of the
Register of Deeds of Ilocos Sur. Earlier, or on September 26, 1979, petitioners executed a Deed
of Sale in favor of DBP which was likewise registered on September 28, 1979.

Upon failure of petitioners to redeem the property within the one (1) year period which expired on
September 28, 1980, petitioners' TCT T-13218 over Lot No. 2-B was cancelled by the Register of
Deeds and in lieu thereof TCT T-19077 was issued to the DBP upon presentation of a duly
executed affidavit of consolidation of ownership.

On April 13,1982, the DBP sold the lot to Francisco Peria in a Deed of Absolute Sale and the
same was registered on April 15, 1982 in the Office of the Register of Deeds of Ilocos Sur.
Subsequently, the DBP's title over the lot was cancelled and in lieu thereof TCT T-19229 was
issued to Francisco Peria.

After title over said lot was issued in his name, Francisco Peria secured a tax declaration for said
lot and accordingly paid the taxes due thereon. He thereafter mortgaged said lot to the PNB
Vigan Branch as security for his loan of P115,000.00 as required by the bank to increase his
original loan from P49,000.00 to P66,000.00 until it finally reached the approved amount of
P115,000.00. Since petitioners were still in possession of Lot No. 2-B, the Provincial Sheriff
ordered them to vacate the premises.

On the other hand, petitioners filed on August 23, 1982 a complaint for annulment of sale,
mortgage and cancellation of transfer certificates of title against the DBP-Laoag City, PNB Vigan
Branch, Ilocos Sur, Francisco Peria and the Register of Deeds of Ilocos Sur, docketed as Civil
Case No. 3447-V before the Regional Trial Court of Vigan, Ilocos Sur.

After trial, the RTC of Vigan, Ilocos Sur, Branch 20, rendered its decision 2 on November 14,
1983 dismissing the complaint, declaring therein, as valid the extrajudicial foreclosure sale of the
mortgaged property in favor of the DBP as highest bidder in the public auction sale held on
August 6, 1979, and its subsequent sale by DBP to Francisco Peria as well as the real estate
mortgage constituted thereon in favor of PNB Vigan as security for the P115,000.00 loan of
Francisco Peria.

The Court of Appeals affirmed the decision of the RTC of Vigan, Ilocos Sur on June 20, 1987.

The motion for reconsideration having been denied 3 on January 19, 1988, petitioners filed the
instant petition for review on certiorari with this Court. Petitioners seek to annul the extrajudicial
foreclosure sale of the mortgaged property on August 6, 1979 in favor of the Development Bank
of the Philippines (DBP) on the ground that it was conducted by the Provincial Sheriff of Ilocos
Sur without first effecting a levy on said property before selling the same at the public auction
sale. Petitioners thus maintained that the extrajudicial foreclosure sale being null and void by
virtue of lack of a valid levy, the certificate of sale issued by the Provincial Sheriff cannot transfer
ownership over the lot in question to the DBP and consequently the deed of sale executed by the
DBP in favor of Francisco Peria and the real estate mortgage constituted thereon by the latter in
favor of PNB Vigan Branch are likewise null and void.

The Court finds these contentions untenable.

The formalities of a levy, as an essential requisite of a valid execution sale under Section 15 of
Rule 39 and a valid attachment lien under Rule 57 of the Rules of Court, are not basic
requirements before an extrajudicially foreclosed property can be sold at public auction. At the
outset, distinction should be made of the three different kinds of sales under the law, namely: an
ordinary execution sale, a judicial foreclosure sale, and an extrajudicial foreclosure sale, because
a different set of law applies to each class of sale mentioned. An ordinary execution sale is
governed by the pertinent provisions of Rule 39 of the Rules of Court. Rule 68 of the Rules of
Court applies in cases of judicial foreclosure sale. On the other hand, Act No. 3135, as amended
by Act No. 4118 otherwise known as "An Act to Regulate the Sale of Property under Special
Powers Inserted in or Annexed to Real Estate Mortgages" applies in cases of extrajudicial
foreclosure sale.

The case at bar, as the facts disclose, involves an extrajudicial foreclosure sale. The public
auction sale conducted on August 6, 1979 by the Provincial Sheriff of Ilocos Sur refers to the
"sale" mentioned in Section 1 of Act No. 3135, as amended, which was made pursuant to a
special power inserted in or attached to a real estate mortgage made as security for the payment
of money or the fulfillment of any other obligation. It must be noted that in the mortgage contract,
petitioners, as mortgagor, had appointed private respondent DBP, for the purpose of extrajudicial
foreclosure, "as his attorney-in-fact to sell the property mortgaged under Act No. 3135, as
amended, to sign all documents and perform any act requisite and necessary to accomplish said
purpose .... In case of foreclosure, the Mortgagor hereby consents to the appointment of the
mortgagee or any of its employees as receiver, without any bond, to take charge of the
mortgaged property at once, and to hold possession of the same ... 4

There is no justifiable basis, therefore, to apply by analogy the provisions of Rule 39 of the Rules
of Court on ordinary execution sale, particularly Section 15 thereof as well as the jurisprudence
under said provision, to an extrajudicial foreclosure sale conducted under the provisions of Act
No. 3135, as amended. Act No. 3135, as amended, being a special law governing extrajudicial
foreclosure proceedings, the same must govern as against the provisions on ordinary execution
sale under Rule 39 of the Rules of Court.

In that sense, the case of Aparri vs. Court Of Appeals, 13 SCRA 611 (1965), cited by petitioners,
must be distinguished from the instant case. On the question of what should be done in the event
the highest bid made for the property at the extrajudicial foreclosure sale is in excess of the
mortgage debt, this Court applied the rule and practice in a judicial foreclosure sale to an
extrajudicial foreclosure sale in a similar case considering that the governing provisions of law as
mandated by Section 6 of Act No. 3135, as amended, specifically Sections 29, 30 and 34 of Rule
39 of the Rules of Court (previously Sections 464, 465 and 466 of the Code of Civil Procedure)
are silent on the matter. The said ruling cannot, however, be construed as the legal basis for
applying the requirement of a levy under Section 15 of Rule 39 of the Rules of Court before an
extrajudicially foreclosed property can be sold at public auction when none is expressly required
under Act No. 3135, as amended.

Levy, as understood under Section 15, Rule 39 of the Rules of Court in relation to execution of
money judgments, has been defined by this Court as the act whereby a sheriff sets apart or
appropriates for the purpose of satisfying the command of the writ, a part or the whole of the
judgment-debtor's property. 5

In extrajudicial foreclosure of mortgage, the property sought to be foreclosed need not be

identified or set apart by the sheriff from the whole mass of property of the mortgagor for the
purpose of satisfying the mortgage indebtedness. For, the essence of a contract of mortgage
indebtedness is that a property has been identified or set apart from the mass of the property of
the debtor-mortgagor as security for the payment of money or the fulfillment of an obligation to
answer the amount of indebtedness, in case of default of payment. By virtue of the special power
inserted or attached to the mortgage contract, the mortgagor has authorized the mortgagee-
creditor or any other person authorized to act for him to sell said property in accordance with the
formalities required under Act No. 3135, as amended.

The Court finds that the formalities prescribed under Sections 2, 3 and 4 of Act No. 3135, as
amended, were substantially complied with in the instant case. Records show that the notices of
sale were posted by the Provincial Sheriff of Ilocos Sur and the same were published in Ilocos
Times, a newspaper of general circulation in the province of Ilocos Sur, setting the date of the
auction sale on August 6, 1979 at 10:00 a.m. in the Office of the Sheriff, Vigan, Ilocos Sur. 6
The nullity of the extrajudicial foreclosure sale in the instant case is further sought by petitioners
on the ground that the DBP cannot acquire by purchase the mortgaged property at the public
auction sale by virtue of par. (2) of Article 1491 and par. (7) of Article 1409 of the Civil Code
which prohibits agents from acquiring by purchase, even at a public or judicial auction either in
person or through the mediation of another, the property whose administration or sale may have
been entrusted to them unless the consent of the principal has been given.

The contention is erroneous.

The prohibition mandated by par. (2) of Article 1491 in relation to Article 1409 of the Civil Code
does not apply in the instant case where the sale of the property in dispute was made under a
special power inserted in or attached to the real estate mortgage pursuant to Act No. 3135, as
amended. It is a familiar rule of statutory construction that, as between a specific statute and
general statute, the former must prevail since it evinces the legislative intent more clearly than a
general statute does. 7 The Civil Code (R.A. 386) is of general character while Act No. 3135, as
amended, is a special enactment and therefore the latter must prevail. 8

Under Act No. 3135, as amended, a mortgagee-creditor is allowed to participate in the bidding
and purchase under the same conditions as any other bidder, as in the case at bar, thus:

Section 5. At any sale, the creditor, trustee, or other person authorized to act for
the creditor, may participate in the bidding and purchase under the same
conditions as any other bidder, unless the contrary has been expressly provided
in the mortgage or trust deed under which the sale is made.

In other words, Section 5 of Act No. 3135, as amended, creates and is designed to create an
exception to the general rule that a mortgagee or trustee in a mortgage or deed of trust which
contains a power of sale on default may not become the purchaser, either directly or through the
agency of a third person, at a sale which he himself makes under the power. Under such an
exception, the title of the mortgagee-creditor over the property cannot be impeached or defeated
on the ground that the mortgagee cannot be a purchaser at his own sale.

Needless to state, the power to foreclose is not an ordinary agency that contemplates exclusively
the representation of the principal by the agent but is primarily an authority conferred upon the
mortgagee for the latter's own protection. It is an ancillary stipulation supported by the same
cause or consideration for the mortgage and forms an essential and inseparable part of that
bilateral agreement. 9 Even in the absence of statutory provision, there is authority to hold that a
mortgagee may purchase at a sale under his mortgage to protect his own interest or to avoid a
loss to himself by a sale to a third person at a price below the mortgage debt. 10 The express
mandate of Section 5 of Act No. 3135, as amended, amply protects the interest of the mortgagee
in this jurisdiction.

WHEREFORE, in view of the foregoing, the petition is DENIED for lack of merit and the decision
of the Court of Appeals dated June 20, 1987 is hereby AFFIRMED. No cost.

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin and Cortes JJ., concur.

Footnotes

1 Rollo, pp. 10-20.

 2 Rollo, pp. 52-55.

3 Rollo, pp. 57-59.

4 Rollo, pp. 57-58.

5 Valenzuela v. de Aguilar, 8 SCRA 212 (1963).

6 Rollo, p. 14.

7 De Jesus v. People, 120 SCRA 760; Wilhemsen v. Baluyot, 83 SCRA 38;

Lacsamana v. Baltazar, 92 Phil. 32.

8 Arayata v. Joya, et al., 51 Phil. 654.

9 Perez v. Philippine National Bank, 17 SCRA 833.

10 55 Am Jur 2d, 643, citing Heighe v. Evans, 164 Md 259,164 A 671, 93 ALR
81; Bergen v. Bennet (NY) Caines Cas.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-76884 May 28, 1990

PEDRO M. ESTELLA and FE K. ESTELLA, petitioners,

vs.
HONORABLE COURT OF APPEALS, Third Division, HON. CORONA IBAY SOMERA,
Presiding Judge, Branch XXVI, Regional Trial Court of Manila, and SPOUSES RICARDO M.
PEREZ and LOLITA DIAZ, respondents.

Oscar I. Mercado for petitioners.

Ricardo M. Perez for private respondents.

FERNAN, C.J.:

Petitioner-spouses Pedro and Fe Estella pray that this Court overturn the resolution of the Court of Appeals dated September 12, 1986
in C.A.-G.R. No. 10255-UDK which dismissed petitioners' appeal for failure to prosecute.

The antecedent facts are as follows:

Rosario N. Concepcion was the original owner of the disputed residential land with a three-door
apartment thereon, situated in Sta. Cruz, Manila, covered by TCT No. 80786 and declared under
Tax Declaration No. 2048. On May 6, 1970, Concepcion sold the property to herein petitioners
who registered the sale with the Register of Deeds of Manila which then issued TCT No. 100990
in their favor. However, petitioners failed to secure a new tax declaration or assessment in their
name, for which reason said property remained for taxation purposes in the name of vendor
Concepcion. 1
Seven years after, or on April 11, 1977, the City Treasurer of Manila, Jesus Calleja, sent to the
declared owner on record, meaning Concepcion, a first notice of tax delinquency covering the
second and fourth quarters of 1970, 1972, 1973, 1974, 1975 and 1976. Since no payment was
made after the first notice, a final notice which included her 1977 tax delinquency was sent on
April 28, 1978 to Concepcion, giving her another ten (10) days to settle her account. Despite the
final notice sent, no payment was made. Consequently, as a warning, the City Treasurer sent
Concepcion a notice of publication dated June 7, 1978 stating therein that the notice would be
published in the Times Journal and Balita on July 15, 22, and 29, 1978, after which if said
property still remained delinquent of taxes, it would be sold at public auction on August 29,
1978. 2

In the public auction held on August 29, 1978, the Sta. Cruz property was awarded to herein
private respondent Ricardo Perez as the highest bidder for P6,100.00. After the auction sale,
another notice was sent to delinquent taxpayer Concepcion informing her of her right to redeem
the property pursuant to Section 78 of P.D. 464 (Real Property Tax Code). The one-year period
having lapsed without any redemption, Perez registered the certificate of sale with the Register of
Deeds of Manila on September 25,1979 and had it annotated at the back of TCT No. 100990.

In a letter dated September 27, 1979, the Register of Deeds of Manila advised petitioner Fe
Estella to surrender their TCT No. 100990 for the purpose of annotating the certificate of sale in
favor of Perez. Petitioner-spouses replied that the tax sale was without legal basis and that they
were never delinquent in the payment of the realty taxes.

On September 20, 1979 and October 11, 1979, petitioners paid their real estate taxes for the
years 1970-1978. 3 For his part, Perez, after one year from the auction sale, applied for the final
deed of sale and updated his realty taxes for 1978, 1979 and. 1980. The final deed of sale was
executed on December 1, 1980. 4

On December 22, 1980, petitioners sued private respondents, City Treasurer Calleja, the
members of the Auction Bidding Committee and the Register of Deeds of Manila for quieting of
title, annulment of public auction sale, certificate of bill of sale, transfer certificate of title,
damages, with prayer for the issuance of a writ of preliminary injunction and/or restraining order. 5

On February 11, 1985, the Regional Trial Court of Manila, Branch 26, presided by respondent
Judge Corona Ibay Somera, rendered judgment against the petitioners. The dispositive part
states:

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered against

the plaintiffs, dismissing the complaint against all the defendants, declaring the
auction tax sale dated August 29, 1979 and the final deed of sale dated
December 1, 1980 valid; declaring defendant Ricardo M. Perez and Lolita Diaz
absolute owners of Lot No. 2-E Block 59, at 2559 BC L. Rivera, San Lazaro II
covered by TCT No. 100990; ordering the plaintiffs to surrender TCT No. 100990
to the Register of Deeds, Manila, to register the final deed of sale executed by
the City Treasurer in favor of Ricardo M. Perez and a new Certificate of Title be
issued in the names of defendant spouses Ricardo M. Perez and Lolita Diaz;
orders the plaintiffs to pay the defendant spouses Ricardo M. Perez and Lolita
Diaz the amount of P10,000.00 as moral damages, P2,500.00 as Attorney's Fees
and to pay the costs of the proceedings . 6

Petitioners received a copy of the decision on March 25, 1985 and filed a notice of appeal on
March 29, 1985. 7 On April 1.1, 1985, the trial court ordered the records of the case forwarded to
the Intermediate Appellate Court. 8 But up to the time when private respondent Perez filed his
motion to dismiss the appeal of petitioners on June 3, 1986 or after a period of one (1) year, one
(1) month and twenty-two (22) days from April 11, 1985, no records were received by the
appellate court. 9 As a matter of fact, the expediente was actually transmitted to the appellate
court on October 13, 1986 as attested by Atty. Cesar P. Javier, the branch clerk of court. 10

In the assailed resolution of September 12, 1986, the Court of Appeals granted respondents'
motion to dismiss appeal for failure of the appellants (petitioners) to prosecute. 11 Hence, this
recourse.

One preliminary point. While petitioners have raised as a principal issue the propriety of the
appellate court's summary dismissal of their appeal, they have also asked the Court, in the
alternative, to rule on the legality of the auction sale which deprived them of their property
allegedly without due process of law. Considering that there are sufficient records available
before us for an adjudication on the merits, we have acceded to petitioners request.

On the matter of the disallowance of the appeal, the Court of Appeals anchored its ruling on the
following provisions of the Revised Rules of Court, to wit:

Section 1. Grounds for dismissal of appeal. — An appeal may be dismissed by

the Court of Appeals, on its own motion or on that of the appellee, on the
following grounds:

xxx xxx xxx

c) Failure of the appellant to prosecute his appeal under Section 3 of Rule 46;

xxx xxx xxx

(Rule 50)

Section 3. Order of transmittal of record. — If the record on appeal is not received

by the Court of Appeals within thirty (30) days after the approval thereof, the
appellee may, upon notice to the appellant, move the court to grant an order
directing the clerk of the lower court forthwith to transmit such record on
appeal or to declare the same abandoned for failure to prosecute. (Rule 46;
Emphasis supplied.)

This is error. The record on appeal as a requisite for the perfection of an appeal has been
eliminated under Section 39 of BP Blg. 129 (Judiciary Reorganization Act of 1980) and Sections
18, 19 and 20 of the Interim Rules and Guidelines which were already in force when respondent
appellate court handed down its dismissal resolution on September 12, 1986. Thus:

Sec. 39. Appeals- ... . No record on appeal shall be required to take an appeal. In
lieu thereof, the entire record shall be transmitted, ... (BP Blg. 129)

18. Elimination of record on appeal and appeal bond. — The filing of a record on
appeal shall be dispensed with, except in the cases referred to in sub-paragraph
(b) of paragraph 19 hereof.

No appeal bond shall be required for an appeal. (Interim Rules and Guidelines)

19. Period of appeal.

(a) all appeals except in habeas corpus cases and in the cases referred to
paragraph (b) hereof, must be taken within fifteen (15) days from notice of the
judgment, order, resolution or award appealed from.
 (b) In appeals in special proceedings in accordance with Rule 109 of the Rules of
Court and other cases wherein multiple appeals are allowed, the period of appeal
shall be thirty (30) days, a record of appeal being required. (Interim Rules and
Guidelines)

20. Procedure for taking appeal. — An appeal ... from the regional trial courts to
the Intermediate Appellate Court in actions or proceedings originally filed in the
former shall be taken by filing a notice of appeal with the court that rendered the
judgment or order appealed from. (Interim Rules and Guidelines)

Since the appellate court based its outright dismissal of petitioners' appeal on the non-transmittal
of the record on appeal pursuant to Section 3, Rule 46 of the Revised Rules of Court, then
clearly, said dismissal was erroneous.

This Court is puzzled as to how the appellate court could have overlooked such a major
innovation introduced in the 1980 Reorganization Act and in the Interim Rules which did away
with the requirement of a record on appeal, the notice of appeal being sufficient for the purpose.
Be that as it may, the appeal by petitioners should have been disallowed for a different reason:
petitioners' gross inaction for a period which exceeded one year.

Records show that the trial court had ordered the records of the case forwarded to the appellate
court as early as April 11, 1985 and since that date, up to the filing of private respondents' motion
to dismiss appeal dated June 3,1986, "nothing appear(ed) to have been done about the said
appeal.

We cannot subscribe to petitioners' gratuitous statement that the rule now exists the appellant is
justified if he merely 'folds his hands' after the trial judge has ordered that the records of the case
be transmitted to the appellate court . 12

Conceding to the point that it is the clerk of court who is primarily responsible for seeing to it that
the records of appealed cases are properly sent to the appellate court without delay (and having
failed to do so subjects him to administrative liability), it behooves the litigants to be more vigilant
of their rights. They should take it upon themselves to call the attention of the trial court as to any
delay in action over their cases. 13

The rule that it is the duty of the appellant to prosecute his appeal with reasonable diligence is
still a sound rule. He cannot simply "fold his hands" and say that it is the duty of the clerk of court
to have his case promptly submitted to the appellate court for the disposition of his appeal.

This absence of an awareness or regard on the part of the defeated litigant to personally see to it
that the needed records are forthwith sent to the appellate court is one major cause of delays in
litigation. Thus, in an effort to do away with the litigant's complacency and to spur him into taking
the initiative, the Court of Appeals has placed on the appellant and his counsel the prime
responsibility of seeing to it that the appealed case shall be ready for decision as soon as
practicable. They must take appropriate and timely steps to ensure that the record of the case is
complete and seasonably transmitted to the Court of Appeals. 14

Proceeding now to the controversial auction sale of the disputed residential land by the City
Treasurer for delinquency in the payment of realty tax, petitioners maintain that said sale was
irregular because they were never personally notified of their tax delinquency, the distraint made
on the subject property and the auction proceedings, since all the notices were sent to
Concepcion who was no longer the registered owner as of May 4, 1970.

Such argument, is unavailing.

Under the particular circumstances of the case, we hold that the City Treasurer had done
everything that was legally incumbent upon him. Not only did he send the pertinent notices to the
declared owner, he also caused the mandatory publication of the notice of public auction in two
(2) newspapers of general circulation pursuant to Section 65 of P.D. No. 464. The notices were
understandably mailed to Concepcion because as far as the City Treasurer was concerned, she
was still the "declared owner" since the assessment of the property in question was still in her
name. It should be recalled that while petitioners had promptly secured a new transfer certificate
of title in their name after the 1970 acquisition, they neglected to effect the necessary change in
the tax declaration as then required by Commonwealth Act No. 470 (Assessment Law) and later
by P.D. No. 464. Under the Assessment Law then in force on May 6,1970 when the Sta. Cruz
property changed hands, petitioners were obliged to make a new declaration thereof Section 12
provides:

Sec. 12. Declaration to be prepared by owner of real property. — It shall be the

duty of every owner of real property within a municipality or municipal district or
his duly authorized representative, to prepare, or cause to be prepared, and
submit to the provincial assessor a declaration of said property stating the value
of each parcel thereof which he owns within the municipality or municipal district.
Such declaration shall contain a description of the property sufficient in detail to
enable the provincial assessor to Identify the same.

It shall also be the duty of any person acquiring at any time real property in any
municipality or municipal district or making any improvement on real property
belonging to him to prepare and submit to the provincial assessor, within sixty
days after the acquisition of such property or the completion of the improvement,
a declaration containing the value of the real property so acquired or of the
improvement made. The property and improvement must be so described as to
enable the provincial assessor to identify the same on examination.

x x x.

Not only were the petitioners remiss in securing a new tax declaration over the Sta. Cruz
property but they did not also pay their realty taxes from 1970 to 1977. As the subsequent
owners, they should have realized that they were duty-bound to pay the realty taxes because
such taxes constitute a lien enforceable against the property itself, regardless of the change in
ownership. This is the reason why the City Treasurer can go directly against the delinquent
property in order to enforce payment of the taxes due. Had petitioners been more diligent in the
annual payment of their real estate taxes, Tax Declaration 2048, which was issued in
Concepcion's name and which remained as the basis in the assessment rolls, would have been
effectively replaced. But this desired change came much too late on October 9,1980 when Tax
Declaration A 038-00812 was issued in petitioners' favor, a good ten (10) years after they had
purchased the disputed property from Concepcion.

All told, if it were really true that petitioners were never given the opportunity to protect their
rights, they had only themselves to blame for the catastrophe that befell them. Not having been
apprised by petitioners of a change in ownership of the subject property, the government was
never placed in a position to give them that opportunity. 15

Considering, however, that petitioners finally settled their tax obligations with the City Treasurer
on September 20, 1979 and October 11, 1979 for the years 1970 to 1978, the question is raised:
Can the payments made (admittedly within the redemption period) be considered as an exercise
of petitioners' right of redemption pursuant to Section 78 of P.D. No. 464?

Under Section 78, the exercise of the right of redemption consists in the payment of the
following: [1] total amount of taxes and penalties due up to the date of redemption; [2] the costs
of sale, and [3] the interest at the rate of twenty (20) per centum of the purchase price.
Evidence shows that petitioners paid only the taxes and penalties due up to 1978 but not the
taxes due up to the date of redemption, i.e. the taxes for 1979, the costs of the sale and twenty
(20) percent interest on the purchase price. Since not all of the prescribed amounts under
Section 78 were paid within the one-year reglementary period, it cannot be said that there was
an effective exercise of the right of redemption.

WHEREFORE, in view of the foregoing, the instant petition is hereby DENIED. Considering the
branch clerk of court's apparent contributory role in the delay in the transmittal of the records of
Civil Case No. R-82- 5992 to the Court of Appeals, Atty. (now Judge) Cesar P. Javier is ordered
to SHOW CAUSE within ten (10) days from notice why no disciplinary action should be taken
against him for such delay.

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin and Cortes JJ., concur.

Footnotes

1 Rollo, p. 53.

2 Rollo, p. 48.

3 Rollo, p. 44.

4 Rollo, p. 51.

5 Civil Case No. R-82-5992; Rollo, p. 22.

6 Rollo, p. 62.

7 Rollo, p. 63.

8 Rollo, p. 65.

9 Rollo, p. 77

10 Rollo, p. 88.

11 Rollo, p. 80.

12 Rollo, P. 110.

13 Jumalon v. Montes, Adm. Matter No. P-2694, March 29, 1982, 113 SCRA
103; Advincula v. Intermediate Appellate Court, G.R. No. L-75310, January 16,
1987, 147 SCRA 262.

14 Article VII-C Court of Appeals Resolution No. 2, dated August 6, 1986.

15 See: Paguio v. Ruiz, 93 Phil. 306.

 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-75656 May 28, 1990

YUCO CHEMICAL INDUSTRIES, INC., petitioner,

vs.
MINISTRY OF LABOR AND EMPLOYMENT thru HONORABLE VICENTE LEOGARDO, JR.,
DEPUTY MINISTER, GEORGE HALILI and AMADO MAGNO, respondents.

Ricardo C. Atienza for petitioner.

Bienvenido B. Balot for private respondents.

FERNAN, C.J.:

Assailed in this petition for certiorari is the order dated April 8, 1986 of Deputy Minister Leogardo, Jr. of the then Ministry of Labor and
Employment (MOLE) which reversed the order of the officer-in-charge of the Tarlac provincial labor office and directed petitioner "to
reinstate complainants with backwages fixed at two years without deduction or qualification." 1

In 1978, private respondents (complainants) George Halili and Amado Magno were employed by
petitioner company which is engaged in the manufacture/assembly of ice boxes in Barangay
Matatalaib, Tarlac, Tarlac. They were assigned to make aluminum handles for the ice boxes.

On August 12,1981, after obtaining a favorable legal opinion from the Tarlac provincial office of
MOLE concerning the legality of moving the production of aluminum handles from Tarlac to
Manila, petitioner addressed a memorandum to private respondents directing them to report for
work within one week from notice at their new place of work at Felix Huertas Street, Sta. Cruz,
Manila. The memorandum further stated that private respondents would be paid with a salary of
P27.00 and an additional allowance of P2.00 "to meet the higher cost of living in Manila. 2

A day after or on August 13, 1981, instead of complying with the memorandum, private
respondents filed a complaint with the provincial labor office for illegal dismissal, 13th month pay
and service incentive leave pay. 3

As a countermove, on August 21, 1981, petitioner filed an application for clearance to terminate
the two employees on the ground of abandonment. On September 25,1981, the OIC of the
Tarlac labor office issued an order directing petitioner to give private respondents their
separation pay within ten (10) days from receipt of notice.

Private respondents appealed to the Office of the Minister of MOLE through Deputy Minister
Leogardo, Jr. who rendered the order in question with the following reasons cited:

1. At the time of acceptance of the employment relation between the parties, it was assumed that
the place of work was in Matatalaib, Tarlac, Tarlac. Thus, to transfer the place of work at such a
distant place as Manila without the consent of the employees concerned can no longer be
construed as a reasonable exercise of management prerogative in the assignment of personnel
dictated by business exigencies;

2. If petitioner company had indeed relocated its operations from Tarlac to Manila, it is puzzling
why out of the 50 employees, it singled out the two (2) plain laborers to man the Manila
operations. Such actuation tended to support the allegation that private respondents were
discriminated against because of their union activities and their refusal to disaffiliate from the
union.

A motion for reconsideration subsequently filed by the petitioner was denied.

Hence this present petition.

First, some general principles on transfer. In a number of cases, the Court has recognized and
upheld the prerogative of management to transfer an employee from one office to another within
the business establishment provided that there is no demotion in rank or a diminution of his
salary, benefits and other privileges. This is a privilege inherent in the employer's right to control
and manage its enterprise effectively. Even as the law is solicitous of the employees' welfare, it
cannot ignore the right of the employer to exercise what are clearly and obviously management
prerogatives. The freedom of management to conduct its business operations to achieve its
purpose cannot be denied .4

But like all other rights, there are limits. The managerial prerogative to transfer personnel must
be exercised without grave abuse of discretion and putting to mind the basic elements of justice
and fair play. 5 Having the right should not be confused with the manner in which that right must
be exercised. Thus it cannot be used as a subterfuge by the employer to rid himself of an
undesirable worker. Nor when the real reason is to penalize an employee for his union activities
and thereby defeat his right to self-organization. But the transfer can be upheld when there is no
showing that it is unnecessary, inconvenient and prejudicial to the displaced employee .6

The reassignment of Halili and Magno to Manila is legally indefensible on several grounds.
Firstly, it was grossly inconvenient to private respondents. They are working students. When they
received the transfer memorandum directing their relocation to Manila within seven days from
notice, classes had already started. The move from Tarlac to Manila at such time would mean a
disruption of their studies. Secondly, there appears to be no genuine business urgency that
necessitated their transfer. As well pointed out by private respondents' counsel, the fabrication of
aluminum handles for ice boxes does not require special dexterity. Many workers could be
contracted right in Manila to perform that particular line of work.

Altogether, there is a strong basis for public respondent's conclusion that the controversial
transfer was not prompted by legitimate reasons. Petitioner company had indeed discriminated
against Magno and Halili when the duo was selected for reassignment to Manila. The transfer
was timed at the height of union concerted activities in the firm, deliberately calculated to
demoralize the other union members. Under such questionable circumstances, private
respondents had a valid reason to refuse the Manila re-assignment. 7 Public respondent did not
err or abuse his discretion in upholding the employees' cause.

WHEREFORE, the questioned order dated April 8, 1986 of Deputy Minister Leogardo, Jr. is
hereby AFFIRMED. Assuming that the positions of private respondents have been filled up, they
should be reinstated to substantially equivalent position without loss of seniority rights, privileges
and benefits due them. Costs against petitioner.

SO ORDERED.

Gutierrez, Jr. and Bidin, JJ., concur.

Feliciano and Cortes, JJ., are on leave.

Footnotes

1 Rollo, pp. 21, 23-24.

2 Rollo, p. 18.

3 Annex F, Rollo, p. 73.

4 Dosch vs. NLRC, G.R. No. L-51182, July 5, 1982, 123 SCRA 296; Petrophil vs.
NLRC, G.R. No. 64048, August 29,1986,143 SCRA 700; Abbott Laboratories Inc.
vs. NLRC, G.R. No. 76959, October 12,1987, 154 SCRA 713.

5 International Harvester Macleod vs. Intermediate Appellate Court, G.R. No.

73287, May 18,1987,149 SCRA 641.

6 Phil. Japan Active Carbon Corp., et al. vs. NLRC and Quinanola, G.R. No.
83239, March 8,1989.

7 See Bataan Shipyard and Engineering Co. Inc. vs. NLRC, G.R. No. 78604, May
9,1988,161 SCRA 271.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 57667 May 28, 1990

SAN MIGUEL CORPORATION, petitioner,

vs.
COURT OF APPEALS and DIRECTOR OF LANDS, respondents.

Ciriaco Lopez, Jr. & Associates for petitioner.

FERNAN, C.J.:

In this petition for review on certiorari, San Miguel Corporation seeks the reversal of the decision of the Court of Appeals 1 denying its
application for registration of a parcel of land in view of its failure to show entitlement thereto.

On December 23, 1975, petitioner San Miguel Corporation (SMC for brevity) purchased from
Silverio Perez Lot 684, a 14,531 square-meter parcel of land located in Sta. Anastacia, Sto.
Tomas, Batangas, in consideration of the sum of P133,084.80. 2 On February 21,1977, claiming
ownership in fee simple of the land, SMC filed before the then Court of First Instance, now
Regional Trial Court of Batangas an application for its registration under the Land Registration
Act.

The Solicitor General, appearing for the Republic of the Philippines, opposed the application for
registration contending that SMC's claim of ownership in fee simple on the basis of a Spanish
title or grant could no longer be availed of by the applicant as the six-month period from February
16, 1976 prescribed by Presidential Decree No. 892 had elapsed; that the parcel of land in
question is part of the public domain, and that SMC, being a private corporation, is disqualified
under Section 11, Article XIV of the Constitution from holding alienable lands of the public
domain. The Solicitor General thereafter authorized the Provincial Fiscal of Batangas to appear
in said case, subject to his supervision and control.

At the initial and only hearing held on October 12, 197 7, the Court, upon motion of SMC and
there being no opposition to the application except that of the Republic of the Philippines, issued
an order of general default. SMC was allowed to mark documentary evidence to establish
jurisdictional facts and to present additional evidence before the Clerk of Court who was
appointed Commissioner for that purpose.

On December 12, 1977, the lower court, presided by Judge Eduardo C. Abaya, rendered a
decision granting the application for registration and adjudicating the property in favor of SMC.

The Solicitor General appealed to the Court of Appeals. In its decision of March 23, 1981, said
court reversed the decision of the lower court and declared the parcel of land involved as public
land. Hence, the instant petition with SMC submitting the following alleged "grave errors" of the
Court of Appeals for this Court's resolution: (1) the Court of Appeals' failure to hold that
"prescription is a mode of acquiring title or ownership of land and that the title thus acquired is
registrable"; (2) the Court of Appeals' disregard of SMC's evidence "not on the basis of
controverting evidence but on the basis of unfounded suppositions and conjectures," and (3) the
Court of Appeals' reversal of the factual findings of the trial court which had the opportunity of
observing the demeanor and sincerity of the witnesses. 3

We need not dwell lengthily on the third "error" assigned by petitioner. Suffice it to state that
while trial courts may have the opportunity to observe the demeanor of witnesses, their factual
findings may nonetheless be reversed by the Court of Appeals, the appellate court vested by law
to resolve both legal and factual issues, if, by the evidence on record, it appears that the trial
court involved erred. What is of primary concern to us in this case is the issue of whether or not
the evidence presented by the petitioner is sufficient to warrant a ruling that SMC and/or its
predecessor-in-interest has a registrable right over Lot 684.

Open, exclusive and undisputed possession of alienable public land for the period prescribed by
law creates the legal fiction whereby the land, upon completion of the requisite period ipso-
jure and without the need of judicial or other sanction, ceases to be public land and becomes
private property. 4 Such open, continuous, exclusive and notorious occupation of the disputed
properties for more than 30 years must, however, be conclusively established. 6 This quantum of
proof is necessary to avoid the erroneous validation of actually fictitious claims of possession
over the property in dispute.

In this case, petitioner's claim that its predecessor-in-interest had open, exclusive and
undisputed possession of Lot 684 for more than thirty years is anchored on certain documentary
and testimonial evidence. Its documentary evidence consist of tax declaration No. 923 wherein it
appears that in 1974, Silverio Perez declared as his own for taxation purposes, a certain riceland
with an area of 1.5657 hectares located in Sta. Anastacia, Sto. Tomas, Batangas, 6 and a
certification of the Office of the Treasurer of Sto. Tomas to the effect that in 1977, Silverio Perez
paid realty taxes for the land subject of tax declaration no. 923. 7

Tax declarations and receipts are not conclusive evidence of ownership or right of possession
over a piece of land. 8They are merely indicia of a claim of ownership. 9 Tax declarations only
become strong evidence of ownership of land acquired by prescription, a mode of acquisition of
ownership relied upon by petitioner in this case, when accompanied by proof of actual
possession. 10

Such proof of actual possession was sought to be provided by the testimony of vendor Silverio
Perez that he had been in possession of the property since 1933 until he sold it to SMC in 1975;
that the property was given to him by his parents when he got married; that no document
evidenced that transfer; that it had been in the possession of his parents since 1925; that he had
declared the property in his name for taxation purposes; that he had paid taxes therefor, and that
he was in peaceful, continuous and exclusive possession of the property until its sale to SMC. 11

Petitioner did not present other witnesses to corroborate Perez' testimony. Its other witness,
Antonio M. de las Alas, Jr., a lawyer of the petitioner, simply testified that he handled the
negotiations for the purchase of the property; that SMC was authorized to own and acquire
property as shown by its articles of incorporation and by-laws; that since its acquisition in 1975,
the property had been used as a hatchery farm of SMC; that SMC's possession in the concept of
an owner had been continuous, adverse and against the whole world, and that the land was
declared for taxation purposes still in the name of Silverio Perez .12

We hold that there is paucity of evidence of actual, notorious and exclusive possession of the
property on the part of vendor Silverio Perez so as to attach to it the character of an express
grant from the govemment. 13 Indeed, as correctly held by the Court of Appeals, Silverio Perez's
testimony, being uncorroborated, is simply self-serving and hence, undeserving of any weight.

WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED. Costs against the
petitioner.

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin and Cortes, JJ., concur.

Footnotes

1 In CA-G.R. No. 63737-R, penned by Justice Elias B. Asuncion and concerned

in Justices Porfirio V. Sison and Mariano A. Zosa.

2 Exhibit 1.

3 p. 18, Rollo.

4 Director of Lands vs. Bengzon, G.R. No. 54045, July 28, 1987, 152 SCRA 369;
Director of Lands vs. Manila Electric Co., G.R. No. 57461, September 11, 1987,
153 SCRA 686; Director of Lands vs. Intermediate Appellate Court and Acme
Plywood and Veneer Co., Inc., G.R. No. 73002, December 29,1986,146 SCRA
509.

5 Municipality of Santiago, Isabela vs. Court of Appeals, L-49903,

February 21,,1983,120 SCRA -4 34, 745.

6 Exhibit H.

7 Exhibit J.

8 Ferrer-Lopez vs, Court of Appeals, G.R. No. 50420, May 29, 1987,150 SCRA
393: Director, of Lands vs. Court of Appeals, G.R. No. 50340, December
26,1984,1,33 SCRA 701-01.

9 Municipality of -Antipolo vs. Zapanta, G.R. No. 65334, December 26, 1984, 133
SCRA 820.
 10 Bautista vs. Court of Appeals, L-43105, August 31, 1984, 131 SCRA 532.

11 TSN October 12, 1977, pp. 5 to 12.

12 Supra, pp. 13-18.

13 See: Republic vs. De Porkan , G.R. No. 66866, June 18, 19987, 151 SCRA

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 83820 May 25, 1990

JOSE B. AZNAR (as Provincial Chairman of PDP Laban in Cebu), petitioner,

vs.
COMMISSION ON ELECTIONS and EMILIO MARIO RENNER OSMEÑA, respondents.

Rufino B. Requina for petitioner.

Angara, Abello, Concepcion, Regala & Cruz for private respondent.

PARAS, J.:

Before Us is a petition for certiorari assailing the Resolution of the Commission on Elections (COMELEC) dated June 11, 1988, which
dismissed the petition for the disqualification of private respondent Emilio "Lito" Osmeña as candidate for Provincial Governor of Cebu
Province.

The facts of the case are briefly as follows:

On November 19, 1987, private respondent Emilio "Lito" Osmeña filed his certificate of
candidacy with the COMELEC for the position of Provincial Governor of Cebu Province in the
January 18, 1988 local elections.

On January 22, 1988, the Cebu PDP-Laban Provincial Council (Cebu-PDP Laban, for short), as
represented by petitioner Jose B. Aznar in his capacity as its incumbent Provincial Chairman,
filed with the COMELEC a petition for the disqualification of private respondent on the ground
that he is allegedly not a Filipino citizen, being a citizen of the United States of America.

On January 27, 1988, petitioner filed a Formal Manifestation submitting a Certificate issued by
the then Immigration and Deportation Commissioner Miriam Defensor Santiago certifying that
private respondent is an American and is a holder of Alien Certificate of Registration (ACR) No.
B-21448 and Immigrant Certificate of Residence (ICR) No. 133911, issued at Manila on March
27 and 28, 1958, respectively. (Annex "B-1").

The petitioner also filed a Supplemental Urgent Ex-Parte Motion for the Issuance of a Temporary
Restraining Order to temporarily enjoin the Cebu Provincial Board of Canvassers from
tabulating/canvassing the votes cast in favor of private respondent and proclaiming him until the
final resolution of the main petition.
Thus, on January 28, 1988, the COMELEC en banc resolved to order the Board to continue
canvassing but to suspend the proclamation.

At the hearing before the COMELEC (First Division), the petitioner presented the following
exhibits tending to show that private respondent is an American citizen: Application for Alien
Registration Form No. 1 of the Bureau of Immigration signed by private respondent dated
November 21, 1979 (Exh. "B"); Alien Certificate of Registration No. 015356 in the name of
private respondent dated November 21, 1979 (Exh. "C"); Permit to Re-enter the Philippines
dated November 21, 1979 (Exh. "D"); Immigration Certificate of Clearance dated January 3, 1980
(Exh. "E"). (pp. 117-118, Rollo)

Private respondent, on the other hand, maintained that he is a Filipino citizen, alleging: that he is
the legitimate child of Dr. Emilio D. Osmeña, a Filipino and son of the late President Sergio
Osmeña, Sr.; that he is a holder of a valid and subsisting Philippine Passport No. 0855103
issued on March 25, 1987; that he has been continuously residing in the Philippines since birth
and has not gone out of the country for more than six months; and that he has been a registered
voter in the Philippines since 1965. (pp. 107-108, Rollo)

On March 3, 1988, COMELEC (First Division) directed the Board of Canvassers to proclaim the
winning candidates. Having obtained the highest number of votes, private respondent was
proclaimed the Provincial Governor of Cebu.

Thereafter, on June 11, 1988, COMELEC (First Division) dismissed the petition for
disqualification for not having been timely filed and for lack of sufficient proof that private
respondent is not a Filipino citizen.

Hence, the present petition.

The petition is not meritorious.

There are two instances where a petition questioning the qualifications of a registered candidate
to run for the office for which his certificate of candidacy was filed can be raised under the
Omnibus Election Code (B.P. Blg. 881), to wit:

(1) Before election, pursuant to Section 78 thereof which provides that:

'Section 78. Petition to deny due course or to 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 the filing of the certificate of candidacy and shall be decided, after the notice
and hearing, not later than fifteen days before the election.

and

(2) After election, pursuant to Section 253 thereof, viz:

'Sec. 253. Petition for quo warranto. — Any voter contesting the election of any
Member of the Batasang Pambansa, regional, provincial, or city officer on the
ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a
sworn petition for quo warranto with the Commission within ten days after the
proclamation of the results of the election.
The records show that private respondent filed his certificate of candidacy on November 19,
1987 and that the petitioner filed its petition for disqualification of said private respondent on
January 22, 1988. Since the petition for disqualification was filed beyond the twenty five-day
period required in Section 78 of the Omnibus Election Code, it is clear that said petition was filed
out of time.

The petition for the disqualification of private respondent cannot also be treated as a petition
for quo warranto under Section 253 of the same Code as it is unquestionably premature,
considering that private respondent was proclaimed Provincial Governor of Cebu only on March
3, 1988.

However, We deem it is a matter of public interest to ascertain the respondent's citizenship and
qualification to hold the public office to which he has been proclaimed elected. There is enough
basis for us to rule directly on the merits of the case, as the COMELEC did below.

Petitioner's contention that private respondent is not a Filipino citizen and, therefore, disqualified
from running for and being elected to the office of Provincial Governor of Cebu, is not supported
by substantial and convincing evidence.

In the proceedings before the COMELEC, the petitioner failed to present direct proof that private
respondent had lost his Filipino citizenship by any of the modes provided for under C.A. No. 63.
Among others, these are: (1) by naturalization in a foreign country; (2) by express renunciation of
citizenship; and (3) by subscribing to an oath of allegiance to support the Constitution or laws of
a foreign country. From the evidence, it is clear that private respondent Osmeña did not lose his
Philippine citizenship by any of the three mentioned hereinabove or by any other mode of losing
Philippine citizenship.

In concluding that private respondent had been naturalized as a citizen of the United States of
America, the petitioner merely relied on the fact that private respondent was issued alien
certificate of registration and was given clearance and permit to re-enter the Philippines by the
Commission on Immigration and Deportation. Petitioner assumed that because of the foregoing,
the respondent is an American and "being an American", private respondent "must have taken
and sworn to the Oath of Allegiance required by the U.S. Naturalization Laws." (p. 81, Rollo)

Philippine courts are only allowed to determine who are Filipino citizens and who are not.
Whether or not a person is considered an American under the laws of the United States does not
concern Us here.

By virtue of his being the son of a Filipino father, the presumption that private respondent is a
Filipino remains. It was incumbent upon the petitioner to prove that private respondent had lost
his Philippine citizenship. As earlier stated, however, the petitioner failed to positively establish
this fact.

The cases of Juan Gallanosa Frivaldo v. COMELEC et al, (G.R. No. 87193, June 21, 1989)
and Ramon L. Labo v. COMELEC et al (G.R. No. 86564, August 1, 1989) are not applicable to
the case at bar.

In the Frivaldo case, evidence shows that he was naturalized as a citizen of the United States in
1983 per certification from the United States District Court, Northern District of California, as duly
authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San
Francisco, California, U.S.A.

Frivaldo expressly admitted in his answer that he was naturalized in the United States but
claimed that he was forced to embrace American citizenship to protect himself from the
persecution of the Marcos government. The Court, however, found this suggestion of
involuntariness unacceptable, pointing out that there were many other Filipinos in the United
States similarly situated as Frivaldo who did not find it necessary to abandon their status as
Filipinos.

Likewise, in the case of Labo, records show that Labo was married to an Australian citizen and
that he was naturalized as an Australian citizen in 1976, per certification from the Australian
Government through its Consul in the Philippines. This was later affirmed by the Department of
Foreign Affairs.

The authenticity of the above evidence was not disputed by Labo. In fact, in a number of sworn
statements, Labo categorically declared that he was a citizen of Australia.

In declaring both Frivaldo and Labo not citizens of the Philippines, therefore, disqualified from
serving as Governor of the Province of Sorsogon and Mayor of Baguio City, respectively, the
Court considered the fact that by their own admissions, they are indubitably aliens, no longer
owing any allegiance to the Republic of the Philippines since they have sworn their total
allegiance to a foreign state.

In the instant case, private respondent vehemently denies having taken the oath of allegiance of
the United States (p. 81, Rollo). He is a holder of a valid and subsisting Philippine passport and
has continuously participated in the electoral process in this country since 1963 up to the
present, both as a voter and as a candidate (pp. 107-108, Rollo). Thus, private respondent
remains a Filipino and the loss of his Philippine citizenship cannot be presumed.

In the learned dissent of Mr. Justice Teodoro Padilla, he stresses the fact that because Osmeña
obtained Certificates of Alien Registration as an American citizen, the first in 1958 when he was
24 years old and the second in 1979, he, Osmeña should be regarded as having expressly
renounced Philippine citizenship. To Our mind, this is a case of non sequitur (It does not follow).
Considering the fact that admittedly Osmeña was both a Filipino and an American, the mere fact
that he has a Certificate stating he is an American does not mean that he is not still a Filipino.
Thus, by way of analogy, if a person who has two brothers named Jose and Mario states or
certifies that he has a brother named Jose, this does not mean that he does not have a brother
named Mario; or if a person is enrolled as student simultaneously in two universities, namely
University X and University Y, presents a Certification that he is a student of University X, this
does not necessarily mean that he is not still a student of University Y. In the case of Osmeña,
the Certification that he is an American does not mean that he is not still a Filipino, possessed as
he is, of both nationalities or citizenships. Indeed, there is no express renunciation here of
Philippine citizenship; truth to tell, there is even no implied renunciation of said citizenship. When
We consider that the renunciation needed to lose Philippine citizenship must be "express", it
stands to reason that there can be no such loss of Philippine 'citizenship when there is no
renunciation either "'express" or "implied".

Parenthetically, the statement in the 1987 Constitution that "dual allegiance of citizens is inimical
to the national interest and shall be dealt with by law"(Art. IV, Sec. 5) has no retroactive effect.
And while it is true that even before the 1987 Constitution, Our country had already frowned upon
the concept of dual citizenship or allegiance, the fact is it actually existed. Be it noted further that
under the aforecited proviso, the effect of such dual citizenship or allegiance shall be dealt with
by a future law. Said law has not yet been enacted.

WHEREFORE, the petition for certiorari is hereby DISMISSED and the Resolution of the
COMELEC is hereby AFFIRMED.

SO ORDERED.

Narvasa, Bidin, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Feliciano, J., I concur. I also join in the concurring opinion of Justice Sarmiento.
Cortes, J., concur in the result.

Fernan, C.J., took no part.

Gancayco, J., is on leave.

Separate Opinions

SARMIENTO, J., concurring:

The majority seems agreed that the private respondent has acquired American citizenship, only
that he did not necessarily lose his Filipino citizenship. The important question, however, inheres
in how he obtained American citizenship. I find that there is a dearth of facts here.

For, if the private respondent became an American by naturalization, he has lost Filipino
citizenship (Com. Act No. 63; Frivaldo v. COMELEC, G.R. No. 87193, June 21, 1989; Labo v.
COMELEC, G.R. No. 86564, August 1, 1989). If he, however, became one by the application of
the principle of jus soli it is by force of circumstances rather than choice. But he does not lose his
Filipino citizenship, if he were otherwise born of Filipino parents.

In the absence of evidence, we can not presume that he had ceased to be a citizen of the
Philippines, simply because he is, at the same time. a citizen of the United States. There must be
a clear showing that he lost his Filipino citizenship by any of the means enumerated by
Commonwealth Act No. 63. The fact that he had obtained an alien certificate of registration,
standing alone, does not amount to "express renunciation."

MELENCIO-HERRERA, J., dissenting:

I join the dissent of Messrs. Justices Isagani A. Cruz and Teodoro R. Padilla.

While it may be that dual citizenship usually results from accident of birth, a choice will have to
be made by the individual concerned at some point in time in his life, involving as it does the
priceless heritage of citizenship.

That election was made by private respondent when, in 1958, at the age of 24, and in 1979, at
45, he obtained Alien Certificates of Registration. Registration as an alien is a clear and
unambiguous act or declaration that one is not a citizen. If, in fact, private respondent was merely
compelled to so register because of the "uncooperativeness" of the past regime, he could have,
under the new dispensation, asked for the cancellation of those Alien Certificates and abandoned
his alienage, specially before he ran for public office in 1988.

The 1987 Constitution declares in no uncertain terms that "dual allegiance of citizens is inimical
to the national interest and shall be dealt with by law" (Article IV, Section 5). That statement is
but a reaffirmation of an innate conviction shared by every Filipino. The law referred to need not
be awaited for one to consider giving up the legal convenience of dual citizenship.

Accordingly, I vote to grant the Petition.

CRUZ, J., dissenting:

I join Mr. Justice Padilla in his dissent.

It seems to me that when a person voluntarily registers as an alien, he is in effect affirming that
he is not a citizen. The terms "citizen" and "alien" are mutually exclusive from the viewpoint of
municipal law, which is what really matters in the case at bar. Under this discipline, one is either
a citizen of the local state or he is not; and the question is resolved on the basis of its own laws
alone and not those of any other state.

One of the several modes of losing Philippine citizenship under C.A. No. 63 is by "express
renunciation" thereof. In the case of Frivaldo v. Commission on Elections, G.R. No. 87193, June
23,1989, there was such renunciation when the petitioner took an oath as a naturalized citizen of
the United States in which he renounced all allegiance to all other states. In the case of Labo v.
Commission on Elections, G.R. No. 86546, August 1, 1989, the petitioner not only took a similar
oath after his naturalization in Australia but also executed other documents in which he stated
that he was not a Filipino.

The fact that his naturalization was later revoked did not also invalidate his disavowal of
Philippine citizenship. "Express renunciation" is a separate mode of losing Philippine citizenship
and is not necessarily dependent on "naturalization in a foreign country," which is another and
different mode.

When a person rejects and divorces his wife to enter into a second marriage, he cannot say he
still loves her despite his desertion. The undeniable fact is that he has left her for another woman
to whom he has totally and solemnly transferred his troth. It does him no credit when he protests
he married a second time simply for material convenience and that his heart still belongs to the
wife he has abandoned. At worst, it would reveal his sordid and deceitful character.

By the same token, professing continued allegiance to the Philippines after renouncing it
because of its meager resources, or for other ulterior and equally base reasons, is to me a paltry
form of patriotism. It is a sop to the repudiated state and a slight to the adopted state. No matter
how noble this attitude may appear to others, it is to me nothing less than plain and simple
hypocrisy that we should not condone, let alone extol.

Coming now to the case at bar, I note first of all that no naturalization is involved here as the
private respondent claims to be a citizen both of the Philippines and of the United States. The
question I think we must answer is: Was there an express renunciation of Philippine citizenship
by the private respondent when he knowingly and voluntarily registered as an alien with the
Commission of Immigration and Deportation in 1958 and in 1979?

In Yu v. Commission of Immigration and Deportation, G.R. No. 83882, January 24, 1989, I made
the following observations in a separate opinion:

Regretfully, I cannot agree with the finding that the petitioner has expressly renounced his
Philippine citizenship. The evidence on this point is in my view rather meager. Express
renunciation of citizenship as a made of losing citizenship under Com. Act No. 63 is an
unequivocal and deliberate act with full awareness of its significance and consequences. I do not
think the "commercial documents he signed" suggest such categorical disclaimer.

That case is distinguished from the one before us now in that Yu did not ask the Philippine
government to register him as an alien. Gov. Osmeña did.
It is my opinion that if the governor had confined himself to simply seeking and using an
American passport, these acts could not have by themselves alone constituted a repudiation of
Philippine citizenship. The problem, though, is that he did more than enjoy this legal
convenience. What he actually did was register with the Philippine government as an alien within
its own territory, presumably so he could be insulated from the jurisdiction it exercises over its
nationals. This was a voluntary act. As a citizen of the Philippines, he was not required to register
as an alien. Nevertheless, he chose to do so of his own free will. By this decision, he
categorically asked the Republic of the Philippines to treat him as an American and not a Filipino,
choosing to be an alien in this land that was willing to consider him its own.

C.A. No. 63 does not necessarily require that the express renunciation of Philippine citizenship
be made in connection with the naturalization of the erstwhile Filipino in a foreign country.
Renunciation may be made independently of naturalization proceedings. Moreover, no
sacramental words are prescribed by the statute for the express renunciation of Philippine
citizenship. As long as the repudiation is categorical enough and the preference for the foreign
state is unmistakable, as in the case at bar, Philippine citizenship is lost.

The private respondent would have his cake and eat it too, but this can never be allowed where
Philippine citizenship is involved. It is a gift that must be deserved to be retained. The Philippines
for all her modest resources compared to those of other states, is a jealous and possessive
mother demanding total love and loyalty from her children. It is bad enough that the love of the
dual national is shared with another state; what is worse is where he formally rejects the
Philippines, and in its own territory at that, and offers his total devotion to the other state.

I am aware of the praiseworthy efforts of Gov. Osmeña to improve the province of Cebu, and
also, I should add, of the commendable record of Gov. Frivaldo and Mayor Labo in the
administration of their respective jurisdictions. But that is not the point. The point is that it is not
lawful to maintain in public office any person who, although supported by the electorate, is not a
Filipino citizen. This is a relentless restriction we cannot ignore.

Regretfully, therefore, I must vote to GRANT the petition.

PADILLA, J., dissenting:

I am constrained to dissent.

I start from the premise that the private respondent Emilio Mario Renner Osmeña enjoyed at one
time dual citizenship, i.e,, Philippine and U.S. citizenships. He was born in the Philippines of a
Filipino father and an American (U.S.) mother. However, his sworn application for alien
registration dated 21 November 1979 (Exh. B) filed with the Philippine immigration authorities
was, in my view, an express renunciation of his Philippine citizenship. As held in Board of
Immigration Commissioners vs. Go Callano 1 express renunciation means a renunciation that is
made known distinctly and explicitly and not left to inference or implication.

Nothing can be more distinct and explicit than when a dual citizenship holder-like the private
respondent of age, and with full legal capacity to act, voluntarily and under oath applies with the
Philippine Government for registration as an alien, insofar as his intention not to remain a Filipino
citizen is concerned. And because of that distinct and explicit manifestation of desire to be
considered an alien in the Philippines, the Philippine immigration authorities issued to private
respondent Alien Certificate of Registration No. 015356 dated 21 November 1979 (Exh. C),
Permit to Re- enter the Philippines No. 122018 dated 21 November 1979 (Exh. D) and
Immigration Certificate of Clearance No. D-146483 dated 3 January 1980 (Exh E) 2
All the foregoing documents issued by the Philippine immigration authorities to the private
respondent at his request are predicated on the proposition that private respondent is an alien
under Philippine laws. It should also be mentioned that, while not marked as exhibit in the case
at bar, private respondent was likewise issued in Cebu City Native Born Certificate of Residence
No. 115883 on 21 November 1979 (as verified from Immigration records). This document, copy
of which is attached hereto as Annex A, is again predicated on the proposition that private
respondent is a duly-registered align (American) residing in the Philippines.

Another relevant document that merits attention is the Application for Re-entry Permit executed
and signed by private respondent on 3 January 1980, again under oath, and verified from the
records at the CID wherein private respondent expressly stated that he is a U.S. national. The
importance of this document cannot be underestimated For, if private respondent believed that
he is a Filipino citizen, he would not have executed said Application for Re-entry Permit, since it
is the right of every Filipino citizen to return to his country (the Philippines). The fact, therefore,
that private respondent executed said sworn Application for Re-entry Permit, copy of which is
attached hereto as Annex B, is again an abundant proof that he himself, no less, believed that he
was, as he continuous to be, a resident alien (American) in the Philippines.

It will further be noted that earlier, or in 1958, private respondent had already registered as an
alien with the Bureau of Immigration under the Alien Registration Act of 1950 RA 562). Section 1
of said Act provides:

SECTION 1. Aliens residing in the Philippines shall, within thirty days after the
approval of this Act, apply for registration, in the case of those residing in the City
of Manila, at the Bureau of Immigration and in the case of those residing in other
localities at the office of the city or municipal treasurers, or at any other office
designated by the President. ... . 3 (Emphasis supplied)

Accordingly, per certification of the Commissioner of Immigration and Deportation Miriam

Defensor Santiago (Exh. A), issued on 26 January 1988, private respondent had been issued
ACR No. B-21-448 and ICR No. 13391 on 27 and 28 March 1958 respectively. He, therefore,
registered himself in the Philippines as an alien twice; first, in the year 1958, when he was 24
years old and again in 1979, when he was 45 years old. By twice registering under oath as an
alien with the Bureau of Immigration, private respondent thereby clearly, distinctly and explicitly
manifested and declared that he was an alien (and, therefore, not a Filipino citizen) residing in
the Philippines and under its laws.

At this point, and to be objectively fair to the private respondent, a clarification should be made.
In his Comment on the Petition at bar (Rollo, p. 81), it is stated by his counsel that he (private
respondent) was born in 1934 — hence, our mathematical conclusion that when he first
registered as an alien in 1958, he was 24 years old and in 1979 when he re-registered as an
alien, he was 45 years old. However, private respondent's immigration records disclose that he
was born in 1938 (not in 1934). On the assumption that the year 1938 is the correct year of birth
of private respondent (and that his alleged year of birth, 1934, as stated in his Comment at bar is
erroneous), then in 1958, when he first registered as an alien, he was 20 years old, while in 1979
when he re-registered as an alien, he was 41 years old.

Still, his first registration as an alien (at age 20) has to be taken, in my view, as an express
renunciation of his Philippine citizenship, because (1) at that time, he was almost 21 years old
the age of majority, and (2) more importantly, under the applicable Alien Registration Act RA
562), an alien 14 years or over has to register in person (and not through his parents or
guardian). It provides:

The parent or legal guardian of an alien who is less than fourteen years of age,
shall have the duty of registering such alien: Provided, That whenever any such
 alien attains his fourteenth birthday in the Philippines he shall, within fifteen days
thereafter, apply in person for registration. (Sec. 1, par. 2)

I take the above provision to mean that the choice by a dual nationality holder on whether to
remain a Filipino citizen or an alien has to be made at age 14, and private respondent (although
a bit late) made the notice in 1958 (at age 20) in favor of his U.S. citizenship.

If all the foregoing acts of express renunciation of Philippine citizenship had been made or filed
by private respondent elsewhere (not with the Philippine Government), there could perhaps be
some room for contention that vis-a- vis the Philippine Government, private respondent had not
renounced his Philippine citizenship. But said acts of express renunciation were filed with the
Philippine Government and done right in the Philippines. In turn the Philippine Government,
through the immigration authorities, accepted and acted on private respondent's aforesaid
representations, and registered and documented him TWICE as an alien under Philippine law.

The policy of our laws has been, and with laudable reason, to discourage dual citizenship,
because this condition or status assumes as a necessary complement thereof dual allegiance at
the same time to two (2) different countries. As early as 16 September 1947, a unanimous
Supreme Court, speaking thru Mr. Justice Sabino Padilla in the celebrated case of Tan Chong
vs. Secretary of Labor, rejected the principle of jus soli as determinative of Philippine citizenship,
for the following reason, among others:

... . Citizenship, the main integrate element of which is allegiance, must not be
taken lightly. Dual allegiance must be discouraged and prevented. But the
application of the principle jus soli to persons born in this country of alien
parentage would encourage dual allegiance which in the long run would be
detrimental to both countries of which such persons might claim to be citizens. 4

This policy found later expression in the 1987 Constitution which now provides —

Sec. 5. Dual allegiance of citizen is inimical to the national interest and shall be
dealt with by law. (Article IV)

Dual citizenship, in my considered opinion, must be eschewed. While having the "best of two (2)
words" maybe the result of birth or other factors accidentally brought about, the "dual citizen" has
to make a choice at one time or another. Having two (2) citizenships is, as I see it, similar in
many ways to having two (2) legal spouses, when as a matter of principle and sound public
policy, fealty to only one (1) spouse is both compelling and certainly desirable.

Gordon and Rosenfield in their book on Immigration Law and Procedure state:

Dual nationality is universally recognized as an undesirable phenomenon. It

inevitably results in questionable loyalties and leads to international conflicts.
Dual nationality also makes possible the use of citizenship as a badge of
convenience rather than of undivided loyalty. And it impairs the singleness of
commitment which is the hallmark of citizenship and allegiance. A person should
have a right to choose his own nationality, and this choice should be honored by
all countries. However, he should not be entitled to claim more than one
nationality. 5 (Emphasis supplied)

Private respondent made a deliberate and decisive choice when he asked the Philippine
Government which, like many other countries, considers dual allegiance as against national or
public interest to register him at least twice (and, therefore, unmistakably) as an alien in this
country. That choice pro tanto was a renunciation of his Philippine citizenship. The choice must
be respected as a conscious and knowledgeable act of a discerning, distinguished and respected
person who must be presumed to have known the full import of his acts.
Finally, the last thing that should be said against the Court is that it is inconsistent in its rulings. In
the light of its recent decision in G.R. No. 86565 (Ramon L. Labo, Jr. vs. The Commission on
Elections, et al.) I see no valid justification for holding Mr. Labo an alien upper Philippine law
while holding private respondent herein a Filipino citizen. For, as the majority states: "In fact, in a
number of sworn statements, Labo categorically declared that he was a citizen of Australia" (p. 7,
Decision). And is exactly what private respondent did. In a number of sworn statements, he
declared that he was a citizen of the United States.

To Mr. Labo, the Court said, "so be it, you are an Australian," yet to the private respondent,
despite such sworn statements that he is a U.S. citizen, the Court says, "never mind those sworn
statements, you are still a Filipino." Sauce for the goose, as the saying goes, is sauce for the
gander. The doctrinal basis of the Court's decisions should be built on the merits, not on
distinctions that really make no difference.

ACCORDINGLY, I vote to GRANT the petition and to declare the private respondent not a
Filipino citizen by his own acts of express renunciation of such citizenship.

GUTIERREZ, JR., J., dissenting:

My stand in the cases of Willie Yu vs. Miriam Defensor Santiago, et al. (G.R. No, 83882, January
24, 1989) and Ramon Labo, Jr, v. Commission on Elections (G.R. 86564, August 2, 1989) is
clear. I regret, however, that I cannot participate in this case because one of the principal counsel
is my relative by affinity, within the fourth civil degree.

Separate Opinions

SARMIENTO, J., concurring:

The majority seems agreed that the private respondent has acquired American citizenship, offly
that he did not necessarily lose his Filipino citizenship. The important question, however, inheres
in how he obtained American citizenship. I find that there is a dearth of facts here.

For, if the private respondent became an American by naturalization, he has lost Filipino
citizenship (Com. Act No. 63; Frivaldo v. COMELEC, G.R. No. 87193, June 21, 1989; Labo v.
COMELEC, G.R. No. 86564, August 1, 1989). If he, however, became one by the application of
the principle of jus soli it is by force of circumstances rather than choice. But he does not lose his
Filipino citizenship, if he were otherwise born of Filipino parents.

In the absence of evidence, we can not presume that he had ceased to be a citizen of the
Philippines, simply because he is, at the same time. a citizen of the United States. There must be
a clear showing that he lost his Filipino citizenship by any of the means enumerated by
Commonwealth Act No. 63. The fact that he had obtained an alien certificate of registration,
standing alone, does not amount to "express renunciation."
MELENCIO-HERRERA, J., dissenting:

I join the dissent of Messrs. Justices Isagani A. Cruz and Teodoro R. Padilla.

While it may be that dual citizenship usually results from accident of birth, a choice will have to
be made by the individual concerned at some point in time in his life, involving as it does the
priceless heritage of citizenship.

That election was made by private respondent when, in 1958, at the age of 24, and in 1979, at
45, he obtained Alien Certificates of Registration. Registration as an alien is a clear and
unambiguous act or declaration that one is not a citizen. If, in fact, private respondent was merely
compelled to so register because of the "uncooperativeness" of the past regime, he could have,
under the new dispensation, asked for the cancellation of those Alien Certificates and abandoned
his alienage, specially before he ran for public office in 1988.

The 1987 Constitution declares in no uncertain terms that "dual allegiance of citizens is inimical
to the national interest and shall be dealt with by law" (Article IV, Section 5). That statement is
but a reaffirmation of an innate conviction shared by every Filipino. The law referred to need not
be awaited for one to consider giving up the legal convenience of dual citizenship.

Accordingly, I vote to grant the Petition.

CRUZ, J., dissenting:

I join Mr. Justice Padilla in his dissent.

It seems to me that when a person voluntarily registers as an alien, he is in effect affirming that
he is not a citizen. The terms "citizen" and "alien" are mutually exclusive from the viewpoint of
municipal law, which is what really matters in the case at bar. Under this discipline, one is either
a citizen of the local state or he is not; and the question is resolved on the basis of its own laws
alone and not those of any other state.

One of the several modes of losing Philippine citizenship under C.A. No. 63 is by "express
renunciation" thereof. In the case of Frivaldo v. Commission on Elections, G.R. No. 87193, June
23,1989, there was such renunciation when the petitioner took an oath as a naturalized citizen of
the United States in which he renounced all allegiance to all other states. In the case of Labo v.
Commission on Elections, G.R. No. 86546, August 1, 1989, the petitioner not only took a similar
oath after his naturalization in Australia but also executed other documents in which he stated
that he was not a Filipino.

The fact that his naturalization was later revoked did not also invalidate his disavowal of
Philippine citizenship. "Express renunciation" is a separate mode of losing Philippine citizenship
and is not necessarily dependent on "naturalization in a foreign country," which is another and
different mode.

When a person rejects and divorces his wife to enter into a second marriage, he cannot say he
still loves her despite his desertion. The undeniable fact is that he has left her for another woman
to whom he has totally and solemnly transferred his troth. It does him no credit when he protests
he married a second time simply for material convenience and that his heart still belongs to the
wife he has abandoned. At worst, it would reveal his sordid and deceitful character.
By the same token, professing continued allegiance to the Philippines after renouncing it
because of its meager resources, or for other ulterior and equally base reasons, is to me a paltry
form of patriotism. It is a sop to the repudiated state and a slight to the adopted state. No matter
how noble this attitude may appear to others, it is to me nothing less than plain and simple
hypocrisy that we should not condone, let alone extol.

Coming now to the case at bar, I note first of all that no naturalization is involved here as the
private respondent claims to be a citizen both of the Philippines and of the United States. The
question I think we must answer is: Was there an express renunciation of Philippine citizenship
by the private respondent when he knowingly and voluntarily registered as an alien with the
Commission of Immigration and Deportation in 1958 and in 1979?

In Yu v. Commission of Immigration and Deportation, G.R. No. 83882, January 24, 1989, I made
the following observations in a separate opinion:

Regretfully, I cannot agree with the finding that the petitioner has expressly renounced his
Philippine citizenship. The evidence on this point is in my view rather meager. Express
renunciation of citizenship as a made of losing citizenship under Com. Act No. 63 is an
unequivocal and deliberate act with full awareness of its significance and consequences. I do not
think the "commercial documents he signed" suggest such categorical disclaimer.

That case is distinguished from the one before us now in that Yu did not ask the Philippine
government to register him as an alien. Gov. Osmeña did.

It is my opinion that if the governor had confined himself to simply seeking and using an
American passport, these acts could not have by themselves alone constituted a repudiation of
Philippine citizenship. The problem, though, is that he did more than enjoy this legal
convenience. What he actually did was register with the Philippine government as an alien within
its own territory, presumably so he could be insulated from the jurisdiction it exercises over its
nationals. This was a voluntary act. As a citizen of the Philippines, he was not required to register
as an alien. Nevertheless, he chose to do so of his own free will. By this decision, he
categorically asked the Republic of the Philippines to treat him as an American and not a Filipino,
choosing to be an alien in this land that was willing to consider him its own.

C.A. No. 63 does not necessarily require that the express renunciation of Philippine citizenship
be made in connection with the naturalization of the erstwhile Filipino in a foreign country.
Renunciation may be made independently of naturalization proceedings. Moreover, no
sacramental words are prescribed by the statute for the express renunciation of Philippine
citizenship. As long as the repudiation is categorical enough and the preference for the foreign
state is unmistakable, as in the case at bar, Philippine citizenship is lost.

The private respondent would have his cake and eat it too, but this can never be allowed where
Philippine citizenship is involved. It is a gift that must be deserved to be retained. The Philippines
for all her modest resources compared to those of other states, is a jealous and possessive
mother demanding total love and loyalty from her children. It is bad enough that the love of the
dual national is shared with another state; what is worse is where he formally rejects the
Philippines, and in its own territory at that, and offers his total devotion to the other state.

I am aware of the praiseworthy efforts of Gov. Osmeña to improve the province of Cebu, and
also, I should add, of the commendable record of Gov. Frivaldo and Mayor Labo in the
administration of their respective jurisdictions. But that is not the point. The point is that it is not
lawful to maintain in public office any person who, although supported by the electorate, is not a
Filipino citizen. This is a relentless restriction we cannot ignore.

Regretfully, therefore, I must vote to GRANT the petition.

PADILLA, J., dissenting:

I am constrained to dissent.

I start from the premise that the private respondent Emilio Mario Renner Osmeña enjoyed at one
time dual citizenship, i.e,, Philippine and U.S. citizenships. He was born in the Philippines of a
Filipino father and an American (U.S.) mother. However, his sworn application for alien
registration dated 21 November 1979 (Exh. B) filed with the Philippine immigration authorities
was, in my view, an express renunciation of his Philippine citizenship. As held in Board of
Immigration Commissioners vs. Go Callano 1 express renunciation means a renunciation that is
made known distinctly and explicitly and not left to inference or implication.

Nothing can be more distinct and explicit than when a dual citizenship holder-like the private
respondent of age, and with full legal capacity to act, voluntarily and under oath applies with the
Philippine Government for registration as an alien, insofar as his intention not to remain a Filipino
citizen is concerned. And because of that distinct and explicit manifestation of desire to be
considered an alien in the Philippines, the Philippine immigration authorities issued to private
respondent Alien Certificate of Registration No. 015356 dated 21 November 1979 (Exh. C),
Permit to Re- enter the Philippines No. 122018 dated 21 November 1979 (Exh. D) and
Immigration Certificate of Clearance No. D-146483 dated 3 January 1980 (Exh E) 2

All the foregoing documents issued by the Philippine immigration authorities to the private
respondent at his request are predicated on the proposition that private respondent is an alien
under Philippine laws. It should also be mentioned that, while not marked as exhibit in the case
at bar, private respondent was likewise issued in Cebu City Native Born Certificate of Residence
No. 115883 on 21 November 1979 (as verified from Immigration records). This document, copy
of which is attached hereto as Annex A, is again predicated on the proposition that private
respondent is a duly-registered alien (American) residing in the Philippines.

Another relevant document that merits attention is the Application for Re-entry Permit executed
and signed by private respondent on 3 January 1980, again under oath, and verified from the
records at the CID wherein private respondent expressly stated that he is a U.S. national. The
importance of this document cannot be underestimated. For, if private respondent believed that
he is a Filipino citizen, he would not have executed said Application for Re-entry Permit, since it
is the right of every Filipino citizen to return to his country (the Philippines). The fact, therefore,
that private respondent executed said sworn Application for Re-entry Permit, copy of which is
attached hereto as Annex B, is again an abundant proof that he himself, no less, believed that he
was, as he continuous to be, a resident alien (American) in the Philippines.

It will further be noted that earlier, or in 1958, private respondent had already registered as an
alien with the Bureau of Immigration under the Alien Registration Act of 1950 RA 562). Section 1
of said Act provides:

SECTION 1. Aliens residing in the Philippines shall, within thirty days after the
approval of this Act, apply for registration, in the case of those residing in the City
of Manila, at the Bureau of Immigration and in the case of those residing in other
localities at the office of the city or municipal treasurers, or at any other office
designated by the President. ... . 3 (Emphasis supplied)

Accordingly, per certification of the Commissioner of Immigration and Deportation Miriam

Defensor Santiago (Exh. A), issued on 26 January 1988, private respondent had been issued
ACR No. B-21-448 and ICR No. 13391 on 27 and 28 March 1958 respectively. He, therefore,
registered himself in the Philippines as an alien twice; first, in the year 1958, when he was 24
years old and again in 1979, when he was 45 years old. By twice registering under oath as an
alien with the Bureau of Immigration, private respondent thereby clearly, distinctly and explicitly
manifested and declared that he was an alien (and, therefore, not a Filipino citizen) residing in
the Philippines and under its laws.

At this point, and to be objectively fair to the private respondent, a clarification should be made.
In his Comment on the Petition at bar (Rollo, p. 81), it is stated by his counsel that he (private
respondent) was born in 1934-hence, our mathematical conclusion that when he first registered
as an alien in 1958, he was 24 years old and in 1979 when he re-registered as an alien, he was
45 years old. However, private respondent's immigration records disclose that he was born in
1938 (not in 1934). On the assumption that the year 1938 is the correct year of birth of private
respondent (and that his alleged year of birth, 1934, as stated in his Comment at bar is
erroneous), then in 1958, when he first registered as an alien, he was 20 years old, while in 1979
when he re-registered as an alien, he was 41 years old.

Still, his first registration as an alien (at age 20) has to be taken, in my view, as an express
renunciation of his Philippine citizenship, because (1) at that time, he was almost 21 years old
the age of majority, and (2) more importantly, under the applicable Alien Registration Act RA
562), an alien 14 years or over has to register in person (and not through his parents or
guardian). It provides:

The parent or legal guardian of an alien who is less than fourteen years of age,
shall have the duty of registering such alien: Provided, That whenever any such
alien attains his fourteenth birthday in the Philippines he shall, within fifteen days
thereafter, apply in person for registration. (Sec. 1, par. 2)

I take the above provision to mean that the choice by a dual nationality holder on whether to
remain a Filipino citizen or an alien has to be made at age 14, and private respondent (although
a bit late) made the notice in 1958 (at age 20) in favor of his U.S. citizenship.

If all the foregoing acts of express renunciation of Philippine citizenship had been made or filed
by private respondent elsewhere (not with the Philippine Government), there could perhaps be
some room for contention that vis-a- vis the Philippine Government, private respondent had not
renounced his Philippine citizenship. But said acts of express renunciation were filed with the
Philippine Government and done right in the Philippines. In turn the Philippine Government,
through the immigration authorities, accepted and acted on private respondent's aforesaid
representations, and registered and documented him TWICE as an alien under Philippine law.

The policy of our laws has been, and with laudable reason, to discourage dual citizenship,
because this condition or status assumes as a necessary complement thereof dual allegiance at
the same time to two (2) different countries. As early as 16 September 1947, a unanimous
Supreme Court, speaking thru Mr. Justice Sabino Padilla in the celebrated case of Tan Chong
vs. Secretary of Labor, rejected the principle of jus soli as determinative of Philippine citizenship,
for the following reason, among others:

... . Citizenship, the main integrate element of which is allegiance, must not be
taken lightly. Dual allegiance must be discouraged and prevented. But the
application of the principle jus soli to persons born in this country of alien
parentage would encourage dual allegiance which in the long run would be
detrimental to both countries of which such persons might claim to be citizens. 4

This policy found later expression in the 1987 Constitution which now provides-

Sec. 5. Dual allegiance of citizen is inimical to the national interest and shall be
dealt with by law. (Article IV)
Dual citizenship, in my considered opinion, must be eschewed. While having the "best of two (2)
words" maybe the result of birth or other factors accidentally brought about, the "dual citizen" has
to make a choice at one time or another. Having two (2) citizenships is, as I see it, similar in
many ways to having two (2) legal spouses, when as a matter of principle and sound public
policy, fealty to only one (1) spouse is both compelling and certainly desirable.

Gordon and Rosenfield in their book on Immigration Law and Procedure state:

Dual nationality is universally recognized as an undesirable phenomenon. It

inevitably results in questionable loyalties and leads to international conflicts.
Dual nationality also makes possible the use of citizenship as a badge of
convenience rather than of undivided loyalty. And it impairs the singleness of
commitment which is the hallmark of citizenship and allegiance. A person should
have a right to choose his own nationality, and this choice should be honored by
all countries. However, he should not be entitled to claim more than one
nationality. 5 (Emphasis supplied)

Private respondent made a deliberate and decisive choice when he asked the Philippine
Government which, like many other countries, considers dual allegiance as against national or
public interest to register him at least twice (and, therefore, unmistakably) as an alien in this
country. That choice pro tanto was a renunciation of his Philippine citizenship. The choice must
be respected as a conscious and knowledgeable act of a discerning, distinguished and respected
person who must be presumed to have known the full import of his acts.

Finally, the last thing that should be said against the Court is that it is inconsistent in its rulings. In
the light of its recent decision in G.R. No. 86565 (Ramon L. Labo, Jr. vs. The Commission on
Elections, et al.), I see no valid justification for holding Mr. Labo an alien upper Philippine law
while holding private respondent herein a Filipino citizen. For, as the majority states: "In fact, in a
number of sworn statements, Labo categorically declared that he was a citizen of Australia" (p. 7,
Decision). And is exactly what private respondent did. In a number of sworn statements, he
declared that he was a citizen of the United States.

To Mr. Labo, the Court said, "so be it, you are an Australian," yet to the private respondent,
despite such sworn statements that he is a U.S. citizen, the Court says, "never mind those sworn
statements, you are still a Filipino." Sauce for the goose, as the saying goes, is sauce for the
gander The doctrinal basis of the Court's decisions should be built on the merits, not on
distinctions that really make no difference.

ACCORDINGLY, I vote to GRANT the petition and to declare the private respondent not a
Filipino citizen by his own acts of express renunciation of such citizenship.

GUTIERREZ, JR., J., separate opinion:

My stand in the cases of Willie Yu vs. Miriam Defensor Santiago, et al. (G.R. No, 83882, January
24, 1989) and Ramon Labo, Jr, v. Commission on Elections (G.R. 86564, August 2, 1989) is
clear. I regret, however, that I cannot participate in this case because one of the principal counsel
is my relative by affinity, within the fourth civil degree.

Separate Opinions
SARMIENTO, J., concurring:

The majority seems agreed that the private respondent has acquired American citizenship, offly
that he did not necessarily lose his Filipino citizenship. The important question, however, inheres
in how he obtained American citizenship. I find that there is a dearth of facts here.

For, if the private respondent became an American by naturalization, he has lost Filipino
citizenship (Com. Act No. 63; Frivaldo v. COMELEC, G.R. No. 87193, June 21, 1989; Labo v.
COMELEC, G.R. No. 86564, August 1, 1989). If he, however, became one by the application of
the principle of jus soli it is by force of circumstances rather than choice. But he does not lose his
Filipino citizenship, if he were otherwise born of Filipino parents.

In the absence of evidence, we can not presume that he had ceased to be a citizen of the
Philippines, simply because he is, at the same time. a citizen of the United States. There must be
a clear showing that he lost his Filipino citizenship by any of the means enumerated by
Commonwealth Act No. 63. The fact that he had obtained an alien certificate of registration,
standing alone, does not amount to "express renunciation."

MELENCIO-HERRERA, J., dissenting:

I join the dissent of Messrs. Justices Isagani A. Cruz and Teodoro R. Padilla.

While it may be that dual citizenship usually results from accident of birth, a choice will have to
be made by the individual concerned at some point in time in his life, involving as it does the
priceless heritage of citizenship.

That election was made by private respondent when, in 1958, at the age of 24, and in 1979, at
45, he obtained Alien Certificates of Registration. Registration as an alien is a clear and
unambiguous act or declaration that one is not a citizen. If, in fact, private respondent was merely
compelled to so register because of the "uncooperativeness" of the past regime, he could have,
under the new dispensation, asked for the cancellation of those Alien Certificates and abandoned
his alienage, specially before he ran for public office in 1988.

The 1987 Constitution declares in no uncertain terms that "dual allegiance of citizens is inimical
to the national interest and shall be dealt with by law" (Article IV, Section 5). That statement is
but a reaffirmation of an innate conviction shared by every Filipino. The law referred to need not
be awaited for one to consider giving up the legal convenience of dual citizenship.

Accordingly, I vote to grant the Petition.

CRUZ, J., dissenting:

I join Mr. Justice Padilla in his dissent.

It seems to me that when a person voluntarily registers as an alien, he is in effect affirming that
he is not a citizen. The terms "citizen" and "alien" are mutually exclusive from the viewpoint of
municipal law, which is what really matters in the case at bar. Under this discipline, one is either
a citizen of the local state or he is not; and the question is resolved on the basis of its own laws
alone and not those of any other state.
One of the several modes of losing Philippine citizenship under C.A. No. 63 is by "express
renunciation" thereof. In the case of Frivaldo v. Commission on Elections, G.R. No. 87193, June
23,1989, there was such renunciation when the petitioner took an oath as a naturalized citizen of
the United States in which he renounced all allegiance to all other states. In the case of Labo v.
Commission on Elections, G.R. No. 86546, August 1, 1989, the petitioner not only took a similar
oath after his naturalization in Australia but also executed other documents in which he stated
that he was not a Filipino.

The fact that his naturalization was later revoked did not also invalidate his disavowal of
Philippine citizenship. "Express renunciation" is a separate mode of losing Philippine citizenship
and is not necessarily dependent on "naturalization in a foreign country," which is another and
different mode.

When a person rejects and divorces his wife to enter into a second marriage, he cannot say he
still loves her despite his desertion. The undeniable fact is that he has left her for another woman
to whom he has totally and solemnly transferred his troth It does him no credit when he protests
he married a second time simply for material convenience and that his heart still belongs to the
wife he has abandoned. At worst, it would reveal his sordid and deceitful character.

By the same token, professing continued allegiance to the Philippines after renouncing it
because of its meager resources, or for other ulterior and equally base reasons, is to me a paltry
form of patriotism. It is a sop to the repudiated state and a slight to the adopted state. No matter
how noble this attitude may appear to others, it is to me nothing less than plain and simple
hypocrisy that we should not condone, let alone extol.

Coming now to the case at bar, I note first of all that no naturalization is involved here as the
private respondent claims to be a citizen both of the Philippines and of the United States. The
question I think we must answer is: Was there an express renunciation of Philippine citizenship
by the private respondent when he knowingly and voluntarily registered as an alien with the
Commission of Immigration and Deportation in 1958 and in 1979?

In Yu v. Commission of Immigration and Deportation, G.R. No. 83882, January 24, 1989, I made
the following observations in a separate opinion:

Regretfully, I cannot agree with the finding that the petitioner has expressly renounced his
Philippine citizenship. The evidence on this point is in my view rather meager. Express
renunciation of citizenship as a made of losing citizenship under Com. Act No. 63 is an
unequivocal and deliberate act with full awareness of its significance and consequences. I do not
think the "commercial documents he signed" suggest such categorical disclaimer.

That case is distinguished from the one before us now in that Yu did not ask the Philippine
government to register him as an alien. Gov. Osmeña did.

It is my opinion that if the governor had confined himself to simply seeking and using an
American passport, these acts could not have by themselves alone constituted a repudiation of
Philippine citizenship. The problem, though, is that he did more than enjoy this legal
convenience. What he actually did was register with the Philippine government as an alien within
its own territory, presumably so he could be insulated from the jurisdiction it exercises over its
nationals. This was a voluntary act. As a citizen of the Philippines, he was not required to register
as an alien. Nevertheless, he chose to do so of his own free will. By this decision, he
categorically asked the Republic of the Philippines to treat him as an American and not a Filipino,
choosing to be an alien in this land that was willing to consider him its own.

C.A. No. 63 does not necessarily require that the express renunciation of Philippine citizenship
be made in connection with the naturalization of the erstwhile Filipino in a foreign country.
Renunciation may be made independently of naturalization proceedings. Moreover, no
sacramental words are prescribed by the statute for the express renunciation of Philippine
citizenship. As long as the repudiation is categorical enough and the preference for the foreign
state is unmistakable, as in the case at bar, Philippine citizenship is lost.

The private respondent would have his cake and eat it too, but this can never be allowed where
Philippine citizenship is involved. It is a gift that must be deserved to be retained. The Philippines
for all her modest resources compared to those of other states, is a jealous and possessive
mother demanding total love and loyalty from her children. It is bad enough that the love of the
dual national is shared with another state; what is worse is where he formally rejects the
Philippines, and in its own territory at that, and offers his total devotion to the other state.

I am aware of the praiseworthy efforts of Gov. Osmeña to improve the province of Cebu, and
also, I should add, of the commendable record of Gov. Frivaldo and Mayor Labo in the
administration of their respective jurisdictions. But that is not the point. The point is that it is not
lawful to maintain in public office any person who, although supported by the electorate, is not a
Filipino citizen. This is a relentless restriction we cannot ignore.

Regretfully, therefore, I must vote to GRANT the petition.

PADILLA, J., dissenting:

I am constrained to dissent.

I start from the premise that the private respondent Emilio Mario Renner Osmeña enjoyed at one
time dual citizenship, i.e,, Philippine and U.S. citizenships. He was born in the Philippines of a
Filipino father and an American (U.S.) mother. However, his sworn application for alien
registration dated 21 November 1979 (Exh. B) filed with the Philippine immigration authorities
was, in my view, an express renunciation of his Philippine citizenship. As held in Board of
Immigration Commissioners vs. Go Callano 1 express renunciation means a renunciation that is
made known distinctly and explicitly and not left to inference or implication.

Nothing can be more distinct and explicit than when a dual citizenship holder-like the private
respondent of age, and with full legal capacity to act, voluntarily and under oath applies with the
Philippine Government for registration as an alien, insofar as his intention not to remain a Filipino
citizen is concerned. And because of that distinct and explicit manifestation of desire to be
considered an alien in the Philippines, the Philippine immigration authorities issued to private
respondent Alien Certificate of Registration No. 015356 dated 21 November 1979 (Exh. C),
Permit to Re- enter the Philippines No. 122018 dated 21 November 1979 (Exh. D) and
Immigration Certificate of Clearance No. D-146483 dated 3 January 1980 (Exh E) 2

All the foregoing documents issued by the Philippine immigration authorities to the private
respondent at his request are predicated on the proposition that private respondent is an alien
under Philippine laws. It should also be mentioned that, while not marked as exhibit in the case
at bar, private respondent was likewise issued in Cebu City Native Born Certificate of Residence
No. 115883 on 21 November 1979 (as verified from Immigration records). This document, copy
of which is attached hereto as Annex A, is again predicated on the proposition that private
respondent is a duly-registered align (American) residing in the Philippines.

Another relevant document that merits attention is the Application for Re-entry Permit executed
and signed by private respondent on 3 January 1980, again under oath, and verified from the
records at the CID wherein private respondent expressly stated that he is a U.S. national. The
importance of this document cannot be underestimated For, if private respondent believed that
he is a Filipino citizen, he would not have executed said Application for Re-entry Permit, since it
is the right of every Filipino citizen to return to his country (the Philippines). The fact, therefore,
that private respondent executed said sworn Application for Re-entry Permit, copy of which is
attached hereto as Annex B, is again an abundant proof that he himself, no less, believed that he
was, as he continuous to be, a resident alien (American) in the Philippines.

It will further be noted that earlier, or in 1958, private respondent had already registered as an
alien with the Bureau of Immigration under the Alien Registration Act of 1950 RA 562). Section 1
of said Act provides:

SECTION 1. Aliens residing in the Philippines shall, within thirty days after the
approval of this Act, apply for registration, in the case of those residing in the City
of Manila, at the Bureau of Immigration and in the case of those residing in other
localities at the office of the city or municipal treasurers, or at any other office
designated by the President. ... . 3 (Emphasis supplied)

Accordingly, per certification of the Commissioner of Immigration and Deportation Miriam

Defensor Santiago (Exh. A), issued on 26 January 1988, private respondent had been issued
ACR No. B-21-448 and ICR No. 13391 on 27 and 28 March 1958 respectively. He, therefore,
registered himself in the Philippines as an alien twice; first, in the year 1958, when he was 24
years old and again in 1979, when he was 45 years old. By twice registering under oath as an
alien with the Bureau of Immigration, private respondent thereby clearly, distinctly and explicitly
manifested and declared that he was an alien (and, therefore, not a Filipino citizen) residing in
the Philippines and under its laws.

At this point, and to be objectively fair to the private respondent, a clarification should be made.
In his Comment on the Petition at bar (Rollo, p. 81), it is stated by his counsel that he (private
respondent) was born in 1934-hence, our mathematical conclusion that when he first registered
as an alien in 1958, he was 24 years old and in 1979 when he re-registered as an alien, he was
45 years old. However, private respondent's immigration records disclose that he was born in
1938 (not in 1934). On the assumption that the year 1938 is the correct year of birth of private
respondent (and that his alleged year of birth, 1934, as stated in his Comment at bar is
erroneous), then in 1958, when he first registered as an alien, he was 20 years old, while in 1979
when he re-registered as an alien, he was 41 years old.

Still, his first registration as an alien (at age 20) has to be taken, in my view, as an express
renunciation of his Philippine citizenship, because (1) at that time, he was almost 21 years old
the age of majority, and (2) more importantly, under the applicable Alien Registration Act RA
562), an alien 14 years or over has to register in person (and not through his parents or
guardian). It provides:

The parent or legal guardian of an alien who is less than fourteen years of age,
shall have the duty of registering such alien: Provided, That whenever any such
alien attains his fourteenth birthday in the Philippines he shall, within fifteen days
thereafter, apply in person for registration. (Sec. 1, par. 2)

I take the above provision to mean that the choice by a dual nationality holder on whether to
remain a Filipino citizen or an alien has to be made at age 14, and private respondent (although
a bit late) made the notice in 1958 (at age 20) in favor of his U.S. citizenship.

If all the foregoing acts of express renunciation of Philippine citizenship had been made or filed
by private respondent elsewhere (not with the Philippine Government), there could perhaps be
some room for contention that vis-a- vis the Philippine Government, private respondent had not
renounced his Philippine citizenship. But said acts of express renunciation were filed with the
Philippine Government and done right in the Philippines. In turn the Philippine Government,
through the immigration authorities, accepted and acted on private respondent's aforesaid
representations, and registered and documented him TWICE as an alien under Philippine law.
The policy of our laws has been, and with laudable reason, to discourage dual citizenship,
because this condition or status assumes as a necessary complement thereof dual allegiance at
the same time to two (2) different countries. As early as 16 September 1947, a unanimous
Supreme Court, speaking thru Mr. Justice Sabino Padilla in the celebrated case of Tan Chong
vs. Secretary of Labor, rejected the principle of jus soli as determinative of Philippine citizenship,
for the following reason, among others:

... . Citizenship, the main integrate element of which is allegiance, must not be
taken lightly. Dual allegiance must be discouraged and prevented. But the
application of the principle jus soli to persons born in this country of alien
parentage would encourage dual allegiance which in the long run would be
detrimental to both countries of which such persons might claim to be citizens. 4

This policy found later expression in the 1987 Constitution which now provides-

Sec. 5. Dual allegiance of citizen is inimical to the national interest and shall be
dealt with by law. (Article IV)

Dual citizenship, in my considered opinion, must be eschewed. While having the "best of two (2)
words" maybe the result of birth or other factors accidentally brought about, the "dual citizen" has
to make a choice at one time or another. Having two (2) citizenships is, as I see it, similar in
many ways to having two (2) legal spouses, when as a matter of principle and sound public
policy, fealty to only one (1) spouse is both compelling and certainly desirable.

Gordon and Rosenfield in their book on Immigration Law and Procedure state:

Dual nationality is universally recognized as an undesirable phenomenon. It

inevitably results in questionable loyalties and leads to international conflicts.
Dual nationality also makes possible the use of citizenship as a badge of
convenience rather than of undivided loyalty. And it impairs the singleness of
commitment which is the hallmark of citizenship and allegiance. A person should
have a right to choose his own nationality, and this choice should be honored by
all countries. However, he should not be entitled to claim more than one
nationality. 5 (Emphasis supplied)

Private respondent made a deliberate and decisive choice when he asked the Philippine
Government which, like many other countries, considers dual allegiance as against national or
public interest to register him at least twice (and, therefore, unmistakably) as an alien in this
country. That choice pro tanto was a renunciation of his Philippine citizenship. The choice must
be respected as a conscious and knowledgeable act of a discerning, distinguished and respected
person who must be presumed to have known the full import of his acts.

Finally, the last thing that should be said against the Court is that it is inconsistent in its rulings. In
the light of its recent decision in G.R. No. 86565 (Ramon L. Labo, Jr. vs. The Commission on
Elections, et al., I see no valid justification for holding Mr. Labo an alien upper Ph. Philippine law
while holding private respondent herein a Filipino citizen. For, as the majority states: "In fact,, in a
number of sworn statements, Labo categorically declared that he was a citizen of Australia"(p. 7,
Decision). And is exactly what private respondent did. In a number of sworn statements, he
declared that he was a citizen of the United States.

To Mr. Labo, the Court said, "so be it, you are an Australian," yet to the private respondent,
despite such sworn statements that he is a U.S. citizen, the Court says, "never mind those sworn
statements, you are still a Filipino." Sauce for the goose, as the saying goes, is sauce for the
gender The doctrinal basis of the Court's decisions should be built on the merits, not on
distinctions that really make no difference.
ACCORDINGLY, I vote to GRANT the petition and to declare the private respondent not a
Filipino citizen by his own acts of express renunciation of such citizenship.

GUTIERREZ, JR., J., separate opinion:

My stand in the cases of Willie Yu vs. Miriam Defensor Santiago, et al. (G.R. No, 83882, January
24, 1989) and Ramon Labo, Jr, v. Commission on Elections (G.R. 86564, August 2, 1989) is
clear. I regret, however, that I cannot participate in this case because one of the principal counsel
is my relative by affinity, within the fourth civil degree.

Footnotes

1 G.R. No. L-24530, October 31, 1968, 25 SCRA 890.

2 Rollo, pp. 117-118.

3 46 OG 11, 5367.

4 79 Phil. 257.

5 Volume 4, Nationality, 1989 ed., p. 11-1 2.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 76564 May 25, 1990

SOUTH CITY HOMES, INC., petitioner,

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

Jose S. Santos, Jr. for petitioner.

CRUZ, J.:

The subject of this dispute is a strip of land between two lots owned by the petitioner. It has an area of 613 square meters and is
situated in Calabuso, Biñan, Laguna. It was discovered only in 1983 after a survey conducted by the Bureau of Lands and is now
identified as Lot No. 5005 of the Binan Estate.1 Registration thereof in the name of the petitioner was decreed in 1984 by the trial court
pursuant to the Property Registration Law. 2 On appeal, the order was reversed by a special division of the respondent court, with two
members dissenting.3 The petitioner is now before us, claiming that the reversal was erroneous.

The two lots bordering the subject property are Lot No. 2381, containing an area of 36,672
square meters, and Lot No. 2386- A, containing an area of 32,011 square meters. Both are now
registered in the name of the petitioner. The history of these lots is described by the trial court as
follows:
The record shows that Lot 2381 was purchased on installment basis by Basilia Dimaranan, and
Lot 2386 was acquired under similar condition by Fernando Guico, both from the Friar Lands
Division of the Bureau of Lands (Exhs. "S" and "R") in the year 1910. Eight (8) years thereafter,
installment-payment for Lot 2386 was completed in favor of Basilia Dimaranan. On the other
hand, Lot 2381 was on September 12, 1911 assigned to Bartolome Peña who continued and
completed the installment payments culminating into the issuance in his name of Patent No.
19138 on September 26,1919. From Bartolome Pena, Lot 2381 was acquired by Fidel M.
Cabrera, Sr. and the title was transferred to his name (Exh. "F") while Lot 2386 was acquired by
the Garcias (Exh. "J-2") On August 27,1981, Lot 2386-A was sold by the Garcias to the applicant
South City Homes, Inc. (Exh. "J"). Lot 2381 was on February 25,1977 sold by Fidel M. Cabrera,
Sr. to Koo Jun Eng (Exh. "G") who in turn assigned the property to the applicant in February of
1981 (Exh. "H"). 4

It is the position of the petitioner that Lot No. 5005 should be registered in its name for either of
two reasons. The first is that the disputed strip of land really formed part of Lots 2381 and 2386-A
but was omitted therefrom only because of the inaccuracies of the old system of cadastral
surveys. The second is that it had acquired the property by prescription through uninterrupted
possession thereof in concept of owner, by itself and its predecessors-in-interest, for more than
forty years.

For its part, the Republic of the Philippines argues that the elongated piece of land between the
two lots now owned by the petitioner used to be a canal which could not have been appropriated
by the purchasers of the adjacent lots or their successors-in-interest. Neither could it be deemed
included in the lots now owned by the petitioner because their respective technical descriptions
indicate otherwise. Prescription is also not applicable because the petitioner has not established
the requisite possession of the lot, as to manner and length, to justify judicial confirmation of title
in its name.

The parties also differ on the nature of the disputed lot. The petitioner insists it is patrimonial
property of the State, being part of the so-called Friar Lands, while the Republic maintains it is
part of the public domain and cannot therefore be acquired by a private corporation. But this
disagreement is irrelevant, as will appear later.

The Court has considered the issues and the arguments of the parties and finds that the petition
has no merit .

To argue that Lot No. 5005 is really a part of the other two lots owned by the petitioner is to
oppose the obvious. What is obvious is the technical descriptions of the two lots whose areas do
not include the strip of land between them. The petitioner points to the original survey of the
lands in 1906 which states that the two lots adjoin each other, without mention of what is now Lot
No. 5005. But it forgets that it has itself suggested that the old surveys were inaccurate, which
could explain the omission.

If it is true that there was no canal between the two lots at the time of their survey, then the
disputed strip of land should have been included as part of either of the two adjoining lots. It was
not. The petitioner itself insists that the canal, if there ever was one, had disappeared after it had
been filled with silt and dirt. The result was the segregation of a third and separate lot, now
known as Lot No. 5005. Notably, the area of that dried-up canal is not negligible as to come
under what the petitioner calls the allowable margin of error in the original survey.

The Republic submits that the petitioner and its predecessors-in-interest could not have
appropriated the strip of land because it used to be a canal over which they could not have
acquired any exclusive right. The applicable law is Act No. 1120, otherwise known as the Friar
Lands Act, providing in its Section 19 as follows:
No purchaser or lessee under this Act shall acquire any exclusive rights to any canal, ditch,
reservoir, or other irrigation works, or to any water supply upon which such irrigation works are or
may be dependent, but all of such irrigation works and water supplies shall remain under the
exclusive control of the Government of the Philippine Islands and be administered under the
direction of the Chief of the Bureau of Public Lands for the common benefit of those interest
dependent upon them. And the Government reserves as a part of the contract of sale in each
instance the right to levy an equitable contribution or tax for the maintenance of such irrigation
works, the assessment of which shall be based upon the amount of benefits received, and each
purchaser under this Act, by accepting the certificate of sale or deed herein provided to be given,
shall be held to assent thereto. And it is further provided that all lands leased or conveyed under
this Act shall remain subject to the right of such irrigation canals, ditches, and reservoirs as now
exist or as the Government may hereafter see fit to construct.

According to the respondent court, the fact that the canal had been filled up did not change its
nature as a canal; it was still a canal although it had dried up. We do not think so. A canal without
water is not a canal. The status of a canal is not perpetual. Consequently, the above provision is
not applicable and cannot defeat the petitioner's claim to the disputed property either as part of
two other lots or as a separate lot.

As we have already rejected the contention that the third lot was part of the other two lots, the
petitioner must fall back on its claim of acquisitive prescription over it as a separate lot. Its
submission is that its possession of the lot dates back to "time immemorial," by which tired
phrase it is intended to convey the idea that the start of such possession can no longer be
recollected. Indeed, it can be. The petitioner's possession does not in fact go back to "time
immemorial," but only to the recent remembered past.

The petitioner presented only two witnesses whose testimony regarding its supposed possession
of Lot No. 5005 is essentially hearsay and inherently inadequate. Thus, Rogelio Constantino, an
employee of the petitioner, declared on the stand:

A. Yes sir, as a matter of fact we were duly informed that since the beginning
even from the time of their predecessors-in-interest, such strip of land was
believed to be forming part of the two parcels of land and since the beginning
they have been cultivating the same and treating the said strip of land as their
own, publicly, notoriously and in the concept of owner. 5

The other witness, Meliton Casunuran, was more explicit but his testimony is largely hearsay
also, let alone the fact that the possession he sought to establish is likewise insufficient.
According to him, he worked as a tenant on the land for the previous owners of the other two lots
before these were acquired by the petitioner and that the subject property was regarded as part
of their lots by their respective owners. Thus he declared:

Q Now, since you testified that you worked both on Lot 2381 and
Lot 2386-A as tenant thereof, did you as a tenant recall that you
cultivated these two particular parcels of land in its entirety?

A Yes, sir.

Q Do you know that between these two parcels of land that you
were working then, there is a strip of land included in the area you
were working which is not included in the title to the two parcels of
riceland?

A Yes, sir, I came to know that. As a matter of fact, when I

became tenant, my predecessor used to tell me that there is a
strip in between the two parcels of riceland which I was working
 on. They even told me that the owners of the adjoining Lots 2381
and 2386 were lucky because there was added to their property a
strip of land which they produced also rice but which is not
included in their title.

According to them, it happened this way that from time immemorial, there was an irrigation canal
constructed on this strip of land. After the cadastral survey of the lots in Biñan, this canal
gradually disappeared by the filing up of dirt and silt until such time that no one could notice
anymore a canal on this strip of land, such that the same was taken possession of by both the
owners of Lot 2381 and Lot 2386 and had it planted with rice in the same way that the two
parcels of riceland were planted at that time. And I was likewise informed by my predecessor that
I have also to till the strip of land, the same having been considered as properly owned and
forming part and parcel of Lots 2381 and 2386 and owned by the respective owners. 6

The underscored portions stress the unreliableness of these declarations, which, in the case of
Constantino, is also suspect as self-serving.

The testimony falls short of establishing the manner and length of possession required by law to
vest prescriptive title in the petitioner to Lot No. 5005. For one thing, as the Solicitor General
points out in his Comment, the claim of adverse ownership to the strip of land between their
respective lots was not exclusive but shared by the predecessors-in-interest of the petitioner. For
another, and more importantly, the length of possession claimed by the petitioner is not sufficient
to vest prescriptive title in it.

Casunurans allegation that the claim of the petitioner's predecessors-in- interest to the disputed
strip of land was "in the concept of owner, open, public and adversely against the whole world"
was fed to him with a leading question during the ex parte hearing, thus:

MENDOZA

Q So you mean to convey to this Honorable Court that from the time of your
predecessor up to your time as tenant, the owners of Lots 2381 and 2386-A have
been in possession of this strip of land containing an area of 613 square meters
more or less in the concept of owner, open, public and adversely against the
whole world?

A Yes, sir.7

The witness was a farmer and could hardly be expected to understand the legal significance of
the question, to which he could have give only the short and simple answer "Yes." He did not and
was not asked to elaborate. The statement was also not corroborated by other witnesses or
supported by documents showing that, indeed, the former owners of the two lots also asserted
claims of ownership over the land in question. In fact, the only other evidence of such claim is the
tax declaration on the said lot, which was made only in 1980. 8

But the more telling consideration, as the Court sees it, is this. By the testimony of the two
witnesses, the petitioner obviously meant to tack the possession of the two lots by the previous
owners to its own possession. There was no need for this because the petitioner acquired
ownership of Lot No. 2381 by assignment and Lot No. 2386-A by purchase; and such ownership
includes the right of possession. The petitioner is not claiming prescriptive rights to these two
lots, which had previously been registered in the name of the transferors The lot it is claiming by
prescription is Lot No. 5005, which it did not acquire from the owner of the other two lots, or from
any previous private registered owner of the lot, as there was none.

Neither of the owners of Lots Nos. 2381 or 2386-A, in their respective deeds, transferred Lot No.
5005 to the petitioner; as already explained, Lot No. 5005 was not part of either of the two lots.
The petitioner merely occupied the disputed strip of land believing it to be included in the two lots
it had acquired from Koo Jun Eng and the Garcia spouses. However, even if it be conceded that
the previous owners of the other two lots possessed the disputed lot, their possession cannot be
tacked to the possession of the petitioner. The simple reason is that the possession of the said
lot was not and could not have been transferred to the petitioner when it acquired Lots Nos. 2381
and 2386-A because these two lots did not include the third lot. Article 1138 of the Civil Code
provides that —

(1) The present possessor may complete the period necessary for prescription by tacking his
possession to that of his grantor or predecessor- in interest.

However, tacking of possession is allowed only when there is a privity of contract or relationship
between the previous and present possessors. In the absence of such privity, the possession of
the new occupant should be counted only from the time it actually began and cannot be
lengthened by connecting it with the possession of the former possessors. Thus it has been held:

A deed, in itself, creates no privity as to land outside its calls. Nor is privity created by the bare
taking of possession of land previously occupied by the grantor. It is therefore the rule, although
sharply limited, that a deed does not of itself create privity between the grantor and the grantee
as to land not described in the deed but occupied by the grantor in connection
therewith, although the grantee enters into possession of the land not described and uses it in
connection with that conveyed. 9

Where a grantor conveys a specific piece of property, the grantee may not tack onto the period of
his holding of an additional piece of property the period of his grantor's occupancy thereof to
make up the statutory period. His grantor has not conveyed such property or his interest therein,
and there is no privity. 10

It is said, in Hanlon v. Ten Hove supra, that this rule is not harsh, the court using the following
language: "If A purchases and by adverse possession obtains title to an adjoining 40 acres, it
would hardly be contended that a conveyance by him of the 40 acquired by deed would carry
with it title to the 40 acquired by adverse possession. So if A acquires by deed a 40 acres and
obtains an adjoining strip 2 rods wide or some interest in it, his conveyance of the 40 acquired by
deed does not carry with it his interest in the adjoining strip. If the sole defense here was that of
adverse possession, we would be obliged to hold that it had not been made out.11

It should also be noted that, according to Article 1135 of the Civil Code:

In case the adverse claimant possesses by mistake an area greater, or less, than that expressed
in his title, prescription shall be based on the possession.

This possession, following the above quoted rulings, should be limited only to that of the
successor-in-interest; and in the case of the herein petitioner, it should begin from 1981 when it
acquired the two adjacent lots and occupied as well the lot in question thinking it to be part of the
other two.

It follows that when the application for registration of the lot in the name of the petitioner was filed
in 1983, the applicant had been in possession of the property for less than three years. This was
far too short of the prescriptive period required for acquisition of immovable property, which is ten
years if the possession is in good faith and thirty years if in bad faith, or if the land is public.

The weakness of the petitioner's position prevents this Court from affirming the claim to the lot in
question either as part of the two other lots or by virtue of acquisitive prescription. And having
made this ruling, we find it unnecessary to determine whether the land is patrimonial in nature or
part of the public domain.
The case of Director of Lands v. Intermediate Appellate Court, 12 on which the petitioner relied so
strongly (to the point of simply invoking it in a supplemental petition instead of filing its
memorandum), is not applicable. That decision, which reversed the case of Manila Electric Co. v.
Castro-Bartolome, 13 involved a situation where the public land automatically became private as a
result of prescription clearly and indubitably established by the claimant. In the case at bar, the
petitioner's claim is rejected not because it is a private corporation barred from acquiring public
land but because it has failed to establish its title to the disputed lot, whatever its nature.

WHEREFORE, the petition is DENIED, with costs against the petitioner.

SO ORDERED.

Narvasa (Chairman) and Medialdea, JJ., concur.

Gancayco and Griño-Aquino, JJ., are on leave.

Footnotes

1 Rollo, pp. 7-8,12.

2 Decision penned by Judge Jose Mar Garcia.

3 Castro-Bartolome, J., ponente; Camilon, Bidin, JJ., concurring; Ejercito,

Coquia, JJ., dissenting.

4 Original Records, p. 48.

5 TSN, August 13,1984, p. 4. Emphasis supplied.

6 Ibid., p. 8. Emphasis supplied.

7 Id.

8 Exhibit "Q," Folder of Exhibits.

9 3 Am Jur 2d Adverse Possession 63, citing Jenkins vs. Trager (CC) 40 F 726,
error dismissed 136 US 651, 34 L ed 557, 10 S Ct 1074; Hanlon v. Ten Hove 235
Mich 227, 209 NW 169, 46 ALR 788; Kramper v. St. John's Church, 131 Neb
840, 270 NW 478; Burns v. Crump, 245 NC 360, 95 SE2d 906; Newkirk v. Porter,
237 NC 115, 74 SE2D 235; Ramsey v. Ramsey, 229 NC 270, 49 SE2D 476;
Boyce v. white 227 NC 640, 44 SE2D 49; Masters v. Local Union No. 472,146 Pa
Super 143, 22 A2d 70; Erck v. Church, 87 Tenn 575, 11 SW 794; People v.
Hagaman 31 Tenn App 398, 215 SW 2d 827. Emphasis supplied.

10 Hanlon v. Ten Hove, 235 Mich 227, 209 NW 169, 46 ALR 788. Emphasis
supplied.

11 Ibid. Emphasis supplied.

12 146 SCRA 509.

13 114 SCRA 799.

 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-34232 May 25, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.
PIO JAPITANA, JR., accused-appellant.

The Solicitor General for plaintiff-appellee.

Pio B. Japitana for accused-appellant.

CRUZ, J.:

Curiously, this is a case of life imitating fiction. The story of the rascal son of the hacendero forcing his attentions on the helpless
maidservant is an oft-told drama that has become virtually part of our folklore and a favorite staple of our local movies. The trial court
has found that the facts conformed substantially to the familiar plot and pronounced the accused-appellant guilty. But Pio Japitana, Jr.
has a different tale to tell.

The accused-appellant was at the time of the alleged offense 26 years old and the overseer in
his father's hacienda. Although the son of a lawyer (who served as his defense counsel), he
finished only Grade VI, after having been enrolled by his parents in a succession of no less than
six schools in Bacolod and Manila. He was also facing charges in the fiscal's office of having
killed a man, but the record does not disclose more about the case.

The complainant is Nenita Abaring, a 21 year-old employee in the Japitana poultry farm and
residing in the hacendero's compound. Her sister Jovita works with her as a domestic and
together with the other female help sleep in the house of their employers. Their parents are
distantly related to the Japitanas and also work for the latter in their hacienda.

Japitana was charged with having raped Abaring on May 16, 1970, in Bacolod City. The offense
was allegedly committed in a small bodega or stockroom in the Japitana compound at about ten
o'clock in the morning of that date. As found by the trial court, Nenita was inside the stockroom
when Pio entered and suddenly headlocked her with his left arm while covering her mouth with
his right hand to prevent her from crying out. The girl's reaction was to resist, and the two fell on
the cement floor, where they continued grappling, Pio all the while urging her to give in and
assuring her that he would marry her. Nenita scratched his face and he bit her hand. As they
struggled, Nenita kicked him in the neck and Pio pulled off her shorts and panty, tearing both of
them. He shed off his trousers. Nenita screamed as he tried to pry her thighs apart and, finally
succeeding as the girl's resistance weakened, plunged his bludgeon into her maiden-head.
Nenita kept writhing in pain and helpless outrage as he repeatedly intruded his manhood, and it
was while they were so joined that they were discovered by Jovita and another helper, Gloria
Baron, who had heard Nenita's screams and come to investigate. Pio put on his trousers. Finding
what he had done to her sister, Jovita chased him with a piece of wood. Nenita, for her part,
rushed out crying to Pio's mother, to whom she tearfully complained. The mother said: "He is
such a naughty boy. He is stupid and he is out of his mind. It is good that he will be sent to jail so
that he will regret his foolishness." 1 Pio, Sr. arrived at the house while Nenita was already calling
the police and upon being informed of what had happened said: "It is good if you will accuse him
so that he will be punished for his foolishness. He would be given a retribution for his
misdeeds." 2
The police came to investigate and retrieved Nenita's shorts and panty on the floor of the
bodega. Nenita was later taken to the police station, where she formally filed her complaint and
was examined by Dr. Teodoro S. Lavada, medicolegal officer of the Bacolod Police Department.

The defense had an entirely different version of the incident, with Nenita as a femme fatale and
Pio as a pliant victim who had succumbed to her temptation. In the morning in question,
according to him, he had just entered the stockroom after briefly talking to three persons who
were working outside when Nenita followed him, closing the door behind her. Without much ado,
she took him in her arms and started fondling his penis. Reacting, he caressed her crotch and
sought to remove her shorts but found that the zipper was broken. She moved his hand aside
and took them off herself, along with her panty, and with her right arm around his neck, drew him
down on the cement floor with her. Lying on his left side with his right leg upon her right leg, he
then inserted his right index and middle fingers in her vagina, moving them in simulation of
coition as she writhed in ecstasy for five to ten minutes. He said he could not unzip his tight-fitting
pants and as his groin was pressing upon his shorts he had an orgasm. It was at this point that
Gloria suddenly appeared at the window and shouted. "Hey, what are you doing there?"

Pio described Nenita as a woman of loose morals who had insinuated herself on him, often
calling him handsome and brushing her breasts against him. She also flirted with the male
helpers. He made much of the open window in the stockroom through which he said she could
have escaped if she really wanted to. He also stressed that he would not have attempted to rape
her at that time because of the three workers outside who were only four meters away and could
have heard her screams.

Among these workers was Romeo Japitana, who testified that he was indeed outside with the
two other workers at the time in question and saw Nenita follow Pio into the stockroom. He said
what they were doing inside was none of his business. He added that Nenita came out later after
Jovita and Gloria had opened the door, and she was screaming and in tears; later in the house,
she shouted, "You fool, you will have your day!"3

Examining himself on the stand, Atty. Pio Japitana, Sr. testified that he was in his office at the
time in question but did not hear Nenita screaming although the stockroom was only fifteen
meters away. When he questioned Nenita that morning, she said his son did not have sexual
intercourse with her but merely inserted his fingers in her vagina. This witness also declared that
what he said that morning was that he would investigate the matter and if the charges were true,
his son "must suffer the consequences." Of particular interest was his assertion that someone in
the police department who claimed he was close to Dr. Lavada but did not identify himself called
him up and suggested that the medical report could be "doctored" for a consideration He said he
indignantly rejected the offer.

There are also charges and counter-charges of overtures for the settlement of the case, but
these are at best peripheral issues. What matters is the really relevant evidence submitted by the
parties which the Court has carefully considered and evaluated. On the basis thereof, we are
convinced that the lower court committed no reversible error in its excellent decision, which is a
model of clarity and perceptiveness.

We have repeatedly stressed that, absent any indication to the contrary, this Court will accord the
highest respect to the findings of the trial judge, who had the opportunity to watch the witnesses
on the stand and to determine by their deportment if they were speaking the truth or lying in their
teeth. Finding no such indications here, we agree with the observations of then Judge Oscar R.
Victoriano (later Presiding Justice of the Court of Appeals) that—

Subjected to diligent and painstaking scrutiny, the testimony of the offended girl,
given in a straightforward manner, neither wavering nor fumbling unimpaired by
material discrepancies and contradictions and shown to be consistent with
 ordinary human experience, undoubtedly bears the imprint of truth and therefore
must be accepted. 4

It is not difficult to believe that Pio could have easily overpowered Nenita, given his physical
build, not to mention his moral influence as the son of his victim's employer. It was also perfectly
natural for Nenita to rush out of the stockroom after her violation and to complain to the mother,
not the father, of the man who had raped her. Women share their problems with each other. It is
no less noteworthy that Nenita acted decisively after the outrage, reporting it immediately to Mrs.
Japitana and then to the police, to the extent of even forgetting to put on her shorts and panty,
which the police found later in the bodega. Indeed, when she was examined that same afternoon
by Dr. Lavada, she was still stinking from the chicken mash that stuck to her body and hair while
she was wrestling with Pio on the cement floor of the stockroom.

But the most telling proof that Nenita was not lying is the medical report, 5 which confirmed
practically every detail of her defloration as she narrated it. The said report is reproduced in full
hereunder:

Physical findings as follows:

Fairly developed and fairly nourished walking patient.

Head: Normal Eyes: Rt: Normal

Left: Normal

Ears: Rt: Normal Left: Normal

Mouth: Normal

Neck: Normal

Chest: Symmetrical in shape with hemispherical mammary glands, with

protruding nipples, with pinkish brown areola. Fairly developed.

Abdominal exam: Symmetrical in shape. Nothing palpable.

Genital examination: Pubic hairs fully developed. Labia majora and minora
slightly gaping, with abrasion at the upper angle. Vaginal opening admits readily
one finger, 2 fingers with difficulty. Vaginal canal with abrasion and reddening.
Hymen with new laceration at 1, 4, 7, 9, and 11 o'clock and old laceration at 12
o'clock. Slight bleeding at 1, 5 and 9 o'clock, lacerations.

Microscopical examination: Cervical smear shows positive sperms (dead).

Physical injuries: 1) Contusion with abrasion, mucosa, lower lip, left.

2) Abrasion linear, 2 in number at lateral aspect, neck, right.

3) Punctuated superficial lacerated wounds, at the posterior aspect, index, middle

and ring finger, hand, right.

4) Abrasion, knee, left.

Duration: 5-7 days if properly treated and if without due complications.

The trial court noted:

Before the certificate was issued, Dr. Lavada observed the complainant to be
pale and nervous. Her dress was dirty and her hair dishevelled with some sandy
substance smelling of poultry feed on her hair and body. He stated that the
contusion on the left lower lip on the mucosa (lower lip, left) could have been
caused by a fall, and the abrasion thereon could be due to friction against a
rough surface such as a struggle on a cement surface. The two (2) linear
abrasions at the lateral aspect of the right neck could have been due to a pointed
object like finger nails, while the punctuated superficial lacerated wounds at the
posterior aspect of the index, middle and ring fingers of the right hand could have
been caused by sharp objects like teeth bite. He attributed the abrasion at the
upper angle of the labia majora and minora which were slightly gaping to friction
against a rough surface. The abrasion with reddening of the vaginal canal could
have been caused by a hard elongated object such as an erect penis in sexual
intercourse. He concluded that on the basis of the lacerations on the hymen,
abrasion and reddenning of the vaginal canal and the result of the microscopic
examination which was positive for sperms, the offended party was exposed to
recent sexual penetration with ejaculation at least within twelve (12) hours from
the time of the examination; that based on the genital findings showing lack of
proper stimulation and lubrication of the vaginal canal, the offended party was not
sufficiently prepared for intercourse and that in relation to the other physical
findings she offered resitance to the sexual act.

Elaborating on the character of the sexual intercourse in question, Dr. Lavada declared:

Q. Could you inform this Honorable Court the difference if any of the genital
organ of a woman who had just sexual intercourse through force and violence
and that with a woman who had just sexual intercourse with her consent, if there
is any difference?

A. A woman who had sexual intercourse through force or violence

there is no romance, sensation, no petting, no orgasm, no
stimulation; whereas, a woman doing it with consent of course,
when they perform the act there is the so called preliminaries,
romance, which would produce secreretions along the vaginal
canal which would diminish the friction, therefore, there is the
presence of liquid and diminish the injury on the vaginal canal; the
labia majora are not so damaged.

Q. After examining Nenita Abaring and with your findings particularly on the
genital examination, what is your opinion on the character of the sexual
intercourse she had.

A. I would say that the woman at that time was not properly prepared; there was
no lubrication; no secretion.

Q. In other words doctor, would you say that there was no consent on the part of
the woman considering your findings?

A. All I could say that woman is not prepared. That is all. 6

By contrast, the evidence of the defense, particularly the testimony of the accused-appellant
himself, is on the whole undeserving of credence. Indeed, it looks to be pure concoction except
possibly for the protestations of Atty. Japitana that he did not hear Nenita's screams from his
office and that he did not immediately condemn his son. But even if it be conceded that he was
really unaware of the girl's cries for help, the fact is that they were heard by Gloria Baron when
she went out into the balcony to tell Atty. Japitana that there was a telephone call for him.
Otherwise, it would not have occurred to her to go to the stockroom where the screams were
coming from.

The testimony of Romeo Japitana that he and two other workers were near the stockroom when
Nenita followed Pio inside is not acceptable. Surely, Nenita would not have entered the
stockroom, and with seduction in mind, when there were people nearby who would be wondering
what she and Pio were doing inside. Moreover, his motives would not be free from suspicion,
considering that he was a first cousin of Pio, Jr. and an employee of Pio, Sr. As to his suggestion
that there was a window in the stockroom through which Nenita could have escaped, the girl had
a quite logical answer. Besides the fact that there were feed boxes that obstructed access to the
window, there was the insistent Pio himself who was determined to prevent her from leaving so
he could rape her.

Atty. Japitana's assertion that somebody tried to extort money from him in exchange for a
medical examination report favorable to his son was just that a mere assertion. No evidence was
adduced to support it. As a lawyer, he should have known better than to make irresponsible
accusations like that, especially against an accredited medicolegal officer of the government with
recognized credentials. If he had really received such an offer, what he should have done was
call for an investigation to ferret out the guilty party. He knew that was his duty as an officer of
the court but, by his own admission, he did nothing.

He made another strange suggestion during the cross-examination of Nenita, when he asked the
following question and received an answer he did not see fit to pursue, thus:

Q. During the course of time that Dr. Lavada was examining your
private part, did you ever notice whether he undressed during his
examination?

A. Why should he undress himself? 7

But apparently not daunted by that reaction, he later made the following accusation in the
accused-appellants brief-

The fact that the complainant was examined twice, can it be possible, that in the
first examination, she was used by Dr. Lavada, which attributed in the presence
of the sperms in her private part?

This is not only a desperate ploy; this is an uncalled for and vicious imputation. While the Court
understands the special zeal Atty. Pio Japitana, Sr. had to exert in defense of his son, such
anxiety did not give him a license to make malicious charges based only on speculation and not
solid evidence.

But more than anything else, it is the testimony of the accused-appellant himself that has
condemned him as a rapist and a liar. His defense is a futile fabrication. By his own account, this
26-year old man said he used only his fingers to gratify Nenita's desire when he could easily
have mounted the girl who was ready and aching to be taken. Considering that sperm was found
in Nenita's vagina, the accused-appellant is in effect declaring under oath—that by some sexual
miracle, it was his fingers that ejaculated. Here was a woman burning with desire and waiting to
be transported by his manhood, and her virile and young lover could only offer her his fingers,
unable to impale her with his phallus because his pants were tight.

There are limits to one's credibility and they have been clearly exceeded in this case. Pio is
plainly unbelievable even as a teller of tales, much less as a defendant fighting for his liberty and
honor. Pio's testimony is an affront to truth and our intelligence; the Court is not as naive as the
defense would hope it to be, nor is it that gullible.

It is hard to understand the purpose of the defense in showing that the accused-appellant had
studied in all of six schools but reached only Grade VI. If it was to prove moral character, then
the evidence has failed to help him; if at all, it has suggested a weakness in his character that
lends more credence to the cause of the prosecution.

The alleged inconsistencies in the testimony of the complaining witness are merely minor lapses
that do not impair the essential veracity of her narration. To argue that she could have made a
more spirited resistance, as by using the bottles in the stockroom to defend herself, is to assume
that she had full freedom of movement when in fact she had been seized by her neck, thrown to
the floor where, despite her efforts to free herself, she was finally overpowered and defiled. As
for the other arguments of the defense, the same are not convincing enough or substantial
enough to tilt the balance in favor of the accused-appellant.

Our conclusion, like that of the trial court, is that there is enough evidence against the accused-
appellant to overcome the constitutional presumption of innocence in his favor. We have
absolutely no doubt that in the morning of May 16, 1970, Pio Japitana, Jr. forced Nenita Abaring
to submit to his will and, despite her vigorous defense of her chastity, ruthlessly bloodied her in a
frenzy of animal lust that deprived her of a virginity it was not his right to pierce.

WHEREFORE, the challenged decision finding the accused-appellant guilty of rape and
sentencing him to reclusion perpetua is AFFIRMED except that the award of moral damages is
increased to P30,000.00. Considering the length of time this case has been pending, the Court
specifically orders that the records thereof be remanded to the court a quo for immediate
execution of this judgment once it becomes final and executory and is entered in due course.
Costs against the accused-appellant.

SO ORDERED.

Narvasa (Chairman) and Medialdea, JJ., concur.

Gancayco and Griño-Aquino, JJ., are on leave.

Footnotes

1 TSN, November 17, 1970, p. 14.

2 Ibid, p. 15.

3 TSN, February 2, 1971, p. 225.

4 Rollo p. 32.

5 Records p. 78; Exhibit "A."

6 TSN, September 21, 1970, pp. 14, 15.

7 TSN, December 1, 1970, p. 78.

 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 87018 May 24, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EDWIN MABUBAY, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Assistance Office for accused-appellant.

GRIÑ0-AQUINO, J.:

Edwin Mabubay, herein accused-appellant, seeks a review of the decision dated December 15, 1988 of the Regional Trial Court of
Kalibo, Aklan, finding him guilty of murder.

On May 11, 1988, the Provincial Fiscal of Kalibo, Aklan, filed an information charging Edwin
Mabubay with murder committed as follows:

That on or about the 9th day of May, 1988, in the afternoon, in Barangay Bubog,
Municipality of Numancia, Province of Aklan, Republic of the Philippines, and
within the jurisdiction of this Honorable Court, the above- named accused, with
treachery and evident premeditation, without just motive, with intent to kill one
DIOLETO RAZ, and while armed with a knife, did then and there willfully,
unlawfully, and feloniously attack, assault and wound said DIOLETO RAZ,
thereby inflicting upon the latter a mortal wound, to wit:

Stab wound 2 x 1 cm., level of the 5th rib, Parasternal line (L)
perforating the right ventricle thru and thru.

as per Autopsy Report and Certificate of Death signed by Dr. Esteban B.

Villaruel, Resident Physician, Dr. Rafael S. Tumbokon Memorial Hospital, Kalibo,
Aklan, hereto attached and following integral parts hereof, which wound directly
caused the death of said DIOLETO RAZ.

That as a result of the criminal acts of the accused, the heirs of the deceased
DIOLETO RAZ, suffered the following damages:

1. P30,000.00 as actual and compensatory damages;

2. P20,000.00 as moral damages; and

3. P20,000.00 as exemplary damages.

CONTRARY TO LAW. (p. 5, Rollo.)

Upon arraignment, the accused pleaded "not guilty." The facts, as found by the trial court, are as
follows:
The evidence of the prosecution show that on May 9, 1988, around 5:30 in the
afternoon, deceased Dioleto Raz, Ramil Raz, Rudy Leyson, Ramon Leyson and
Romeo Leyson were gathered in front of the store of Spouses Raul Tagala and
Telly Tagala located at the side of the provincial road, Barangay Bubog,
Numancia, Aklan, drinking tuba and listening to Dioleto Raz, who was then sitting
on a stool with his back towards the provincial road, narrating about his fighting
cocks, when Edwin Mabubay, coming from the feeder road going towards the
provincial road slowly approached deceased Dioleto Raz from the back, suddenly
placed his right hand around his neck, pulled his knife from his left waist and
stabbed Dioleto Raz on the left breast with his left hand.

As narrated by witness Romeo Leyson,. this is how accused stabbed deceased

Dioleto Raz:

Q. So that the accused came from behind the

victim and stabbed him. Will you please
demonstrate what was the deceased doing at the
time the accused approached him from behind
and stabbed him on the breast?

A. (As demonstrated by the witness, Dioleto Raz

represented by Fiscal Peralta was sitting on a
stool then from behind him came the accused
Edwin Mabubay represented by the witness
suddenly placed his right hand around the neck of
the victim simultaneously with his left hand and
pulled out a knife from his left side then stabbed
the victim in his left breast).

Q. How many times did the accused stab the

victim?

A. Only once.

Q. Do you mean to say that the accused is a left-

handed person?

A. Yes, your Honor.

Q. You said that you have known him for a long

time, have you noticed that he was left handed?

A. Yes, your Honor.

Q. You have known him to be left handed?

A. Yes, your Honor. (tsn pp, 7-8, Aug. 31, 1988,

MVQ.)

Romeo Leyson and all his companions were all shocked by what they have seen
and they all stood up to help deceased Dioleto Raz but when Romeo Leyson
went near Dioleto Raz to help him, accused Edwin Mabubay told him: "Do not
intervene or interfere because you have nothing to do with this," at the same time
accused was holding the knife he used at a 45 degree angle while retreating
backward. As soon as accused had retreated and walked towards the provincial
road, Romeo Leyson, Raul Tagala and their companions rushed to help Dioleto
Raz but upon seeing that blood was spurting from the wound of deceased,
Romeo Leyson ran to get his tricycle in order to load him and bring him to the
hospital. On the way to the hospital, Romeo Leyson passed by the house of a
certain Mr. Cawaling, a brother-in-law of the deceased, and because Mr.
Cawaling has a jeep and would be a faster vehicle to bring the deceased to the
hospital, Romeo Leyson stopped by the house of Mr. Cawaling and informed him
that Dioleto Raz was seriously wounded. Mr. Cawaling immediately changed his
shirt and instructed them to load Dioleto Raz inside his jeep in order that he can
be immediately brought to the hospital. Unfortunately, however, deceased Dioleto
Raz died before reaching the hospital.

Telly Tagala, wife of Raul Tagala, owner of the store where the stabbing incident
had occurred, testified in Court and corroborated the testimony of eyewitness
Romeo Leyson. She testified that she was very sure that there was no altercation
between the accused and the victim nor did the victim ever offer accused a glass
of tuba to drink before the stabbing incident. What she saw was that accused,
who came from behind deceased, put his right hand around the shoulder of
deceased Dioleto Raz and stabbed him with his left hand.

In his defense, accused Edwin Mabubay testified that on May 9, 1988, he was on
his way to Barangay Dongon, Numancia, Aklan, to plow his ricefield with a tractor
but he was not able to reach Barangay Dongon because at the store of Raul
Tagala situated beside the provincial road of Barangay Bubog, Numancia, Aklan,
Dioleto Raz stopped him and offered him a glass of tuba. He accepted the glass
of tuba but only drunk one-half and poured the other half to the ground. Dioleto
Raz got angry with him and told him: "Gago, anong gusto mo?" (You fool, what
do you want). Because Dioleto Raz, who was then seated in a stool, seemed to
stand up, accused immediately placed his arm around his shoulders and stabbed
him with his left hand.

As a described by accused, this is how he stabbed Dioleto Raz:

Q. On what side of the victim was hit when you

stabbed him?

A. Left chest.

Q. And you said that you were on the left side of

the victim when you stabbed him?

A. Yes, your honor.

Q. You also said a while ago that you placed your

hand on the shoulder of the victim. What hand did
you use? Was it your left that you used in holding
the shoulder of the victim?

A. Right hand.

Q. Why, are you left handed?

A Yes, your Honor.

COURT:
 Proceed.

ATTY. RAZ:

Q. So the fact is Dioleto was still seated on the

stool when you stabbed him?

A. He was on the act of standing up.

QUESTIONS FROM THE COURT:

Q. When you stabbed the victim, your right hand

was holding the shoulder of the victim?

A. Yes, your Honor.

Q. You must be very near the victim at the time

when you stabbed him with you left hand?

A. Yes, your Honor.

Q. And you stabbed him by swinging your right

hand around and stabbed him laterally?

A. Yes, your Honor.

After stabbing deceased Dioleto Raz, accused immediately went to Numancia

and surrendered himself to the police authorities.

As to his relations with prosecution witnesses Romeo Leyson and spouses Raul
and Telly Tagala, the owners of the store where the stabbing incident happened,
accused stated the following:

Q. At the time that you were there, there were

other persons, aside from Dioleto?

A. Yes, sir.

Q. There were certain Romeo Leyson as well as

Raul Tagala and laws which

A. Yes, sir

Q. You have no previous quarrel with Raul Tagala

or Romeo Leyson?

A. No, sir.

xxx xxx xxx

Q. The wife of the storeowner who testified here,

do you knowing her very well?

A. Yes, your Honor

 Q. Did you have any misunderstanding.- with her
or with her husband before this incident'?

A. No, you Honor.

Q. Do I get it from you that before this incident and

up to the present there is no bad blood or ill-
feelings between you and that woman and her
husband'

A No, your Honor

Q. So that your relation with the woman and her

husband before the incident and after the incident
has been cordial?

A Yes, your Honor.

Q And so do you know of any reason why these

people are going to testify against you?

A Because the incident happened near their store.

(tsn. pp. 8-12, Nov. 2, 1988, NNL pp. 13-16,
Rollo.)

On December 15, 1988, the trial court rendered judgment finding the accused, Edwin Mabubay,
GUILTY beyond reasonable doubt of the crime of murder and sentenced him to suffer the
penalty of "Thirty (30) Years of reclusion perpetua; to indemnify the heirs of Dioleto Raz the sum
of P30,000; and to pay the costs" (p. 17, Rollo).

In this appeal, appellant alleges that the trial court erred in convicting him of murder despite the
absence of treachery in the killing of the victim which occurred after the latter called him "gago"
for drinking only half of a glass of tuba (that the deceased gave him) and throwing out the rest.

Treachery, "the 16th aggravating circumstance, exists when the offender commits any of the
crimes against the person, employing means, methods, or forms in the execution thereof which
tend directly and specially to insure its execution, without risk to himself arising from any defense
which the offended party might make" (Art 14, par. 16, p. 386, Revised Penal Code by Aquino,
Vol. 1, 1987 Ed.).

To constitute treachery, two conditions must be present, to wit: (1) the employment of means of
execution that give the person attacked no opportunity to defend himself or to retaliate; and (2)
the means of execution were deliberately or consciously adopted. (People vs. Samonte, 64
SCRA 319).

The trial court found that the appellant's attack against Raz was surreptitious for he grabbed the
victim from behind, encircled his right arm around the latter's neck, and stabbed him with the
knife in his left hand. These acts tended directly and especially to insure the execution of the
killing without danger and risk to the appellant arising from any attempt that the victim might
make to defend himself .

The Solicitor General pointed out that: "Alevosia or treachery is present because the attack from
behind was so sudden and unexpected that the deceased did not have the opportunity to defend
himself and there was no risk to the assailant. (People VS. Lopez, 80 SCRA 18; People vs.
Alegria, 84 SCRA 614)." (pp. 48-49, Rollo).
The penalty (30 years of reclusion perpetua) imposed by the trial court is incorrect. The penalty
for murder isreclusion temporal in its maximum period to death. Under the Indeterminate
Sentence Law, the minimum of the imposable penalty shall be taken from the next lower penalty
of prision mayor in its maximum period which is ten (10) years and one (1) day to twelve (12)
years. The maximum imposable penalty shall be within the range of reclusion temporal in its
maximum period, i.e., seventeen (17) years, four (4) months and one (1) day, to twenty (20)
years.

WHEREFORE, the appealed decision is affirmed with modification as to the penalty. The
accused is hereby sentenced to suffer an indeterminate penalty of imprisonment ranging from
twelve (12) years of prision mayor as minimum, to twenty (20) years of reclusion temporal, as
maximum. In other respects, the decision of the trial court is affirmed. Costs de oficio.

SO ORDERED.

Narvasa (Chairman), Cruz and Medialdea, JJ., concur.