A LAW EACH DAY (Keeps Trouble Away) by Jose C. Sison

A LAW EACH DAY (Keeps Trouble Away) By Jose C.
Sison (The Philippine Star)
Void and condemnable
A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison
(The Philippine Star) Updated July 08, 2010 12:00 AM

The disposition or encumbrance of conjugal properties by one spouse must have the consent of the other spouse, or
if the latter is incapacitated, the authority of the court. Without such consent or authority, the disposition or
encumbrance is void. This is the main rule applied in this case. It also illustrates the rule that anyone who does not
act with justice, observe honesty and good faith in the exercise of his/her legal rights is liable for damages caused by
those acts.

This is the case of Paul and Vicky, husband and wife with four children. When they got married Paul already owned a
parcel of land (Lot 8) solely registered in his name under TCT No. 26471. In 1982 the spouses purchased the parcel of
land (Lot 7) adjacent to Paul’s property with an area of 555 square meters and covered by TCT 88674. Then they put
up their conjugal house on both lots with the savings they accumulated through their joint efforts and with the
proceeds of the loan from a bank. Later on they also introduced improvements thereon including a poultry house
and an annex.

In 1991, the couple’s relationship turned sour when Paul got a mistress and neglected his family. Vicky was thus
forced to sell or mortgage some of their movables to support the family and the studies of the children. On the other
hand Paul offered to sell their house and the two lots on which it stood to the spouses Willy and Pat without even
consulting or informing Vicky. So when Vicky learned about it she objected and informed the couple Pat and Willy of
her objections.

Nevertheless, Paul still proceeded with the sale to Pat and Willy who accepted his offer despite Vicky’s objections. So
on June 21, 1991, Paul executed a Deed of Sale in favor of Pat and Willy without Vicky’s consent and signature over
her name. Then on July 5, 1991 when Vicky was out of the house and the four children were in school, Paul, acting in
connivance with spouses Pat and Willy began transferring all the belongings of Vicky and her children to an
apartment.

When Vicky and her daughter came home later, they were stopped from entering. So they just waited at the gate
until evening under the rain. They asked for police assistance but to no avail allegedly because it was purely a family
matter.

Thus Vicky and her children filed a complaint before the RTC for Annulment of Sale, Specific Performance, Damages
and Attorney’s fees with Preliminary Mandatory Injunction against Paul and the spouses Pat and Willy. Vicky claimed
that the sale of Lot 7 and the house erected thereon which were conjugal properties was null and void because it
was without her consent. She also claimed that they are entitled to damages because of the manner they were
evicted from their own conjugal home. Were Vicky and her children correct?

Yes. Lot 7 covered by TCT 88674 was acquired in 1982 during the marriage of Paul and Vicky. Hence it is presumed to
belong to their conjugal partnership. No clear, convincing and satisfactory evidence have been presented to
overcome said presumption. Likewise the house built thereon is conjugal property having been constructed through
the joint efforts of Vicky and Paul who even obtained a loan from a bank. Under Article 124 of the Family Code which
took effect on August 3, 1988, the sale of said properties on June 21, 1991 is void because it is done without the
consent of both husband and wife.

The manner by which Vicky and her children were removed from their family home was also condemnable. While
Vicky was out and her children were in school, Paul, acting in connivance with the spouses Pat and Willy
surreptitiously transferred all their personal belongings to another place. Then they were not allowed to enter their
1 |L a m b d a R h o B e t a F r a t e r n i t y

A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star)
rightful home or family abode despite their impassioned pleas. Hence they are entitled to award for damages. Any
person who willfully causes loss or injury to another in a manner contrary to morals, good customs or public policy
shall compensate the latter for the damages caused.

Hence the sale of lot 7 in favor of Pat and Willy together with the house thereon is declared null and void and Paul
should return the price paid for them to Pat and Willy while the latter should re‐convey the lot and house to spouses
Vicky and Paul. The spouses Pat and Willy as well as Paul should also jointly and severally pay Vicky P100,000 and her
four children P50,000 each as moral damages as well as P10,000 exemplary damages (Ravina vs. Villa Abrille, G.R.
160708, October 16, 2009).


Non‐career officials have security of tenure
A Law Each Day (KEEPS TROUBLE AWAY) By Jose C. Sison (The Philippine Star) Updated July 07, 2010 12:00 AM

From day one of the P‐Noy government, a raging controversy has swirled around the non‐career positions in the civil
service in view of the issuance of memorandum circular No. 1 declaring all of them vacant. The controversy revolves
around the question of whether non‐career employees in the civil service enjoy security of tenure.

This question is actually an offshoot of the 1987 Administrative Code provision classifying the positions in the civil
service into career and non‐career (Section 6 (2), Chapter 2, Tile I‐A Book V). As specified in this code, security of
tenure is one of the main characteristics that distinguish a career from a non‐career position. By implication
therefore, non‐career positions seem to have no security of tenure.

This Administrative Code provision however apparently runs counter to the mandate of Section 2(3) Article IX‐B of
the Constitution which provides that “No officer or employee of the civil service shall be removed or suspended
except for cause provided by law”. The Constitution is clear. It does not make any distinction. It applies to all civil
service employees. It does not say that only the removal or suspension of career employees must be for cause
provided by law. In fact, in the case of Jocom vs. Regalado et.al, G.R. 77373, August 22, 1991, the Supreme Court
already ruled that “Regardless of the classification of the position held by a government employee covered by civil
service rules, be it a career or non‐career position, such employee may not be removed without just cause. An
employee who belongs to the non career service is protected from removal or suspension without just cause and
non observance of due process”.

Based on law and jurisprudence therefore, it is clear that even non‐career civil service employees enjoy security of
tenure in the sense that if their appointment is for a fixed or definite term, or for a project, and it has not yet
expired, they cannot be removed or suspended from office at the mere whim or caprice of the appointing power but
only for causes enumerated in the Administrative Code like dishonesty, oppression, neglect of duty, misconduct and
disgraceful or immoral conduct, established after due notice and hearing.

Generally all positions in the non‐career service have definite duration or period. It may be up to a specific date fixed
in his appointment papers or it may be co‐terminus with the appointing authority. During that period, they have
security of tenure. But when that period ends or expires, the holders of such position should vacate the office.

The exception here are the positions which are primarily confidential requiring the highest degree of confidence,
close intimacy and trust, like the cabinet secretaries and personal staff. They do not have fixed term of office. They
hold office at the pleasure of the appointing authority or for as long as the trust and confidence in them last. When
required to relinquish their office due to loss of confidence, they cannot complain that their right to security of
tenure is violated because they are not actually dismissed or removed. In effect their term of office has simply
expired. Expiration of the term is not covered by the constitutional provision on security of tenure (Achacoso vs.
Macaraig et.al., G.R. 93023, March 31, 1991).

Career and non‐career civil service officials and/or employees therefore both enjoy security of tenure. The main
difference between them is that the tenure of the career employees is permanent in the sense that they hold office
until they reach the retirement age; while that of the non‐career ones are non‐permanent in the sense that they
hold office only for a temporary and limited period.


Difficulty, not incapacity
A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated July 06, 2010 12:00 AM

Psychological incapacity of a spouse, as a ground to declare a marriage void, is more than just “difficulty”, “refusal”
or “neglect” in the performance of some marital obligations. Acts violating marital covenants like infidelity do not
show an irreparably hopeless state of psychological incapacity to perform the basic obligations of marriage. This is
the ruling reiterated in this case of Mon and Mona.

Mon met Mona sometime in 1977 while they were students of nearby schools. Since then, Mon courted Mona and
five months later they became sweethearts. While Mona subsequently left for Japan to study Japanese culture,
literature and language, and even taught in a university there, their communications with each other still continued.

So in 1982, after Mona returned from Japan, the sweethearts decided to tie the knot in a civil ceremony and later
affirmed in a church rite. Since their marriage, they showed contentment and love for each other and begot two
children. Mona took care of the children and even joined sales activities to augment family income. She traveled a
lot and pursued studies abroad but remained faithful to Mon.

However, after eight years of harmonious relationship, their marriage started to fail when Mona discovered that
Mon was having an affair with her own cousin Naty. He even brought the latter to their conjugal home after sending
Mona to Japan to resume her teaching position. Eventually, Mon left the conjugal home sometime in 1992 to live
with Naty, leaving Mona who claimed custody of their children.

Their separation led to the filing of charges and countercharges. Mona filed a criminal case of concubinage and an
administrative case against Mon. On March 7, 1995, Mon in turn filed a petition for the declaration of nullity of their
marriage on the ground of psychological incapacity. Mon claimed that their marriage was “tumultuous”. He
described Mona as domineering who frequently humiliated him before his friends, a spendthrift who overspent the
family budget and who made crucial family decisions without consulting him. Mon added that Mona was tactless,
suspicious and given to nagging and jealousy as shown by her filing of the criminal and administrative case against
him.

During the trial, a psychiatrist was presented as expert witness who found both Mon and Mona to harbor
psychological handicaps which could be traced to their unhealthy maturational development because of strict,
domineering, and disciplinarian parents; and which will hamper their capacity to comply with their marital
obligation. He found Mona to be mistrustful, of low self‐esteem, given to having shallow heterosexual relationships
and immature. Mon on the other hand was found to be egoistic who projects himself as dominant person and craves
for adulation, reassurance and attention to cover his deep seated insecurity and inadequacy.

On May 31, 2000, the RTC found both Mon and Mona psychologically incapacitated to enter into marriage and thus
declared it null and void pursuant to Article 36 of the Family Code. Was the RTC correct?

No. Psychological incapacity required by Article 36 must be (1) grave or serious such that the parties would be
incapable of carrying out the ordinary duties of marriage; (2) rooted in the history of the parties antedating the
marriage, although the overt manifestation may emerge only after marriage; and (3) incurable or even if it were
otherwise, the cure would be beyond the means of the parties involved.

In this case, the psychological examination failed to reveal that these personality traits or psychological conditions
were grave or serious enough to bring about incapacity to assume the essential obligations of marriage. Indeed the
psychiatrist was able to establish the parties’ personality disorders. But he failed to link them to his conclusion that
they are psychologically incapacitated to perform their obligations as husband and wife. Their personality disorders

would not render them unaware of the essential marital obligation or to be in‐cognitive of the basic marital
covenants. The fact that these psychological conditions will hamper their performance of their marital obligations
does not mean that they suffer psychological incapacity as contemplated by Article 36. Mere difficulty is not
synonymous to incapacity.

The claimed incapacity is not likewise incurable and permanent. Even assuming their acts violate the covenants of
marriage, such acts do not show an irreparably hopeless state of psychological incapacity which will prevent them
from undertaking the basic obligations of marriage in the future. At most the psychiatric evaluation of the parties
proved only incompatibility and irreconcilable differences which cannot be equated with psychological incapacity
(Aspillaga vs. Aspillaga, G.R. 170925, October 25, 2009).


Wrong time, wrong aim, good reasons
A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated July 05, 2010 12:00 AM

The call for charter change will never die down because there are really enough good reasons for its amendment or
revision. But that call will remain unheeded for as long as it is made at the wrong time for the wrong purpose and by
the wrong persons. And so it is with this latest resolution filed in Congress by ex‐President now Congresswoman
Gloria Arroyo and her son Dato calling for a Constitutional Convention to amend the Constitution.

Proposing to change the basic law on day one of a new administration is simply wrong timing. There are so many
other problems besetting the new government created by the very proponent when she was still President that have
to be tackled first. Amending or revising the charter is not that urgent. It will only distract the new administration in
immediately tackling the more pressing problems at hand.

It is common knowledge that during her long incumbency several attempts have already been made to change the
charter. Apparently the person behind those attempts is the ex‐President herself although she has denied it. It is also
obvious that the main purpose is to change the form of government from presidential to parliamentary so that she
could have a crack at the Prime Ministership where the real power will be lodged. Those attempts were all foiled
precisely because they were done by the wrong persons and for a wrong purpose. This latest resolution filed in
Congress is but a repetition of those attempts. In fact it confirms that the ex‐president is really behind those moves.
Thus it is also done by the wrong person for the wrong self‐serving purpose.

But in due time, when this administration has already identified and assessed the many problems it inherited
particularly corruption in government, and has set in place the ways and means of solving them, steps can be taken
to change the charter. Admittedly, this move is necessary for the achievement of many other reforms in
government.

Among the many provisions in the present constitution that must be removed, revised, improved and/or clarified
were clearly seen from the many constitutional issues that cropped up in the last election. Foremost among these
were: (1) whether an elected ex‐president who has not finished his term can still run for president again; (2) whether
the ban on midnight appointments covers appointment of members of the Supreme Court; (3) whether the party list
system of representation promoting multi‐party system has really served its purpose of democratizing political
power; and (4) whether the prohibition on political dynasties is forceful enough to guarantee equal access to
opportunities for public service.

The present Constitution seems clear enough when it provides that “the President shall not be eligible for any
reelection”. But smart lawyers still found a loophole in it. They came up with another interpretation claiming that it
applies only to an incumbent president because “reelection” refers only to president still holding office and running
again for the same office. They contended that an ex‐president who has not fully served his term is not actually
running for reelection and therefore is not disqualified to run again. And the COMELEC agreed with them. It allowed
ex‐President Estrada to run again despite the clear intent of the framers of the charter that said prohibition from
running again applies to all elected presidents, incumbent or not, or having served the full term or not. This provision
must therefore be clarified to remove this loophole and to more categorically reflect the charter framers’ intent.

The same is true with respect to the ban on midnight appointments. The charter bans the president from making
appointments two months before the presidential election and up to the end of his term except temporary
appointments to executive positions when continued vacancies therein will prejudice public service or endanger
public safety. But astute lawyers again found a loophole in it. They claimed that the provision is embodied only in the
Article covering the Executive Department; so it does not apply to appointments of members of the Supreme Court
including its Chief Justice (CJ). And the SC itself agreed with them thereby paving the way for the appointment of a

new CJ even during the two month ban. So this provision must likewise be amended to plug the loophole and to
expressly ban all presidential appointments two months before the next presidential elections except temporary
appointments to executive positions in the interest of public service and public safety.

The provision on party list system of representation, on the other hand, has not really democratized political power.
On the contrary it has been used by those already in power to remain in power because the COMELEC has accredited
party list organizations that do not represent the sectors they are supposed to represent; and because the
accredited party list organizations have nominated as their representatives persons who do not really belong to their
sectors. Thus in the last election, the son of the ex‐president who gave way to his mother in his congressional
district, and the outgoing Department of Energy Secretary, have been nominated by the party list organization of
security guards and of jeepney drivers respectively. This provision must therefore be scrapped; or if it has to be
retained, it must be revised as to be self‐operating. Their implementation should not be left to Congress because, as
already shown by the law enacted to implement it, Congress has not democratized but on the contrary,
concentrated the power to those already rich and powerful.

The prohibition on political dynasty however is another matter. While the charter mandates Congress to enact an
enabling law, Congress has not done so up to now because many of its members belong to political dynasties and
therefore would not want them dismantled. So this constitutional provision must be revised to make it self‐
operating without need of any legislation.

There are many more desirable amendments to the charter that will result in true reforms like the conversion of
Congress into a unicameral body with less membership which will definitely result in less government expense and
more efficient and quality legislation. It will be the subject of another write up for a more detailed and extensive
discussion.


Mere evidence
A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated June 30, 2010 12:00 AM

In corporate by‐laws, there is usually a provision that if a stockholder decides to sell his stock, he must first offer it to
the corporation which has a preemptive right to buy it before offering it to others. But if the stock certificate has not
yet been issued, can a stockholder already offer his share for sale to the corporation so that it can exercise its
preemptive right? This is one of the questions resolved in this case.

The case involved the membership shares of one of the high class sports club in the country (MSCI). On October 20,
1994, its Board of Directors adopted a resolution authorizing the sale of 19 unissued shares at a floor price of
P400,000 and P450,000 per share for Class A and B respectively.

On July 7, 1995, Mr. Harold wrote MSCI membership committee expressing his interest to buy a class “A” share and
requested that his name be included in the waiting list. Nothing was heard from the membership committee about
its action on this letter. It only appeared that Miriam who was the head of the MSCI membership section informed
Cely its Treasurer about Mr. Harold’s intention to buy a share and that Cely asked for Mr. Harold’s telephone
number. Cely on the other hand admitted that she indeed called the wife of Mr. Harold sometime in October 1995
and assured her that that there was already an available share for P2.8 million.

At about this time or in November 1995, McF, another interested buyer also expressed its interest in acquiring a
share of MSCI and was negotiating for its purchase at P1.8 million. While the sale between McF and MSCI was still
under negotiation, Mr. Harold was likewise negotiating with McF to purchase the MSCI share to be acquired by McF.
He offered to buy said share for a price of P2.8 million. In fact on November 24, 1995, Mr. Harold already made a
down payment of P1.4 million to McF.

Hence on November 28, 1995 McF already paid MSCI P1.8 million for one class A share. Then on December 5, 1995,
the Deed of Absolute Sale was executed by MSCI and McF. Subsequently on December 27, 1995, Mr. Harold
completed the payment of P2.8 million to McF by paying the balance of P1.4 million. On the same date, McF in turn
sent a letter to MSCI offering to resell its share for P2.8 million for the latter to exercise its preemptive right pursuant
to the by‐laws.

In the meantime, on January 5, 1996, Stock Certificate A 2243 was already issued in the name of McF for one MSCI
share pursuant to the Deed of Sale dated December 5, 1995. Then on January 29, 1996, or 32 days after MSCI was
notified by McF to exercise its pre‐emptive right, and MSCI had not exercised it, McF and Mr. Harold already
executed a Deed of Absolute Sale of said share of stock. Thereafter on February 7, 1996, MSCI was advised of said
sale so a new Certificate was issued to Mr. Harold.

After investigating the transaction, and finding that fraud was committed by Cely and McF who allegedly
confabulated with one another, MSCI sued Cely and McF to recover P1 million representing the amount allegedly
defrauded, with interest and damages. MSCI contended among others that the notice given by McF on December
27, 1995 for it to exercise its preemptive right was premature since the stock certificate was issued only on January
5, 1996. Was MSCI correct?

No. When McF offered to resell one class “A” share of stock to MSCI for the price of P2.8 million so that the latter
can exercise its pre‐emptive right as required by its by‐laws, McF legally had the right to do so since it was already an
owner of a Class “A” share by virtue of the payment on November 28, 1995 and the Deed of Absolute Sale dated
December 15, 1995 notwithstanding the fact that the stock certificate was issued only on January 5, 1996. A
certificate of stock is merely evidence of the holder’s interest and status in the corporation representing his
ownership of the share. It is not equivalent of such ownership. It expresses the contract between the corporation

and the stockholder, but not essential to the existence of a share of stock or the nature of the relation of the
stockholder to the corporation.

Therefore McF properly complied with the requirement of the by‐laws on MSCI’s pre‐emptive rights. Without doubt
MSCI failed to repurchase McF’s Class “A” share within 30 days pre‐emptive period. It was only on January 29, 1996
when McF and Mr. Harold executed the Deed of Sale, or 32 days after McF notified MSCI to exercise its pre‐emptive
rights. While Mr. Harold had the right to demand immediate execution of the Deed upon full payment of the price,
he did not do so precisely because he wanted McF to first comply with the pre‐emptive requirement as set forth in
the By‐laws (Makati Sports Club vs. Cheng et. al., G.R. 178523, June 16, 2010)


Continued existence

Can an employee be dismissed for offenses committed during her employment in a government owned or controlled
corporation which were subsequently discovered by same corporation after it was privatized and after it rehired
her? This is one of the questions answered in this case of Lucy.

Lucy started as a probationary clerk of the Philippine National Bank (PNB), then a government owned bank, on
December 4, 1967. She rose from ranks and eventually became an Assistant Department Manager I by 1996. On May
26, 1996, when PNB was privatized, Lucy and her co‐employees were deemed automatically retired. After clearing
Lucy of any accountability, PNB computed her gratuity benefits, the monetary value of her leave credits and other
benefits due her.

The next day May 27, 1996, however, the new management of the privatized PNB rehired Lucy and assigned her in a
branch where she had been previously assigned. But less than four months later, the new management discovered
that Lucy had committed several offenses and thus charged her administratively with serious misconduct, willful
breach of trust and gross violation of the bank’s rules and regulations for: taking part in a “kiting operation” from
January 2 to April 3, 1996 while she was assistant department manager in said branch; issuing six certificates of
deposits between June 5,1992 to January 10, 1996 in amounts exceeding the balance of the deposits; for issuing two
bank commitments dated January 24, 1994 and providing a credit line in favor of a government contractor without
authority; and for tardiness and “under time” from October to December 1995.

In answer, Lucy denied the charges and explained that her actions were merely accommodations given to valued
clients for business development with the knowledge and consent of the Manager and Comptroller where the bank
did not suffer any loss; that she could not be guilty of tardiness and “under time” because she was a bank officer,
aside from the fact that deductions were already made for such tardiness; and that these causes took place when
she was yet a government official and since she already retired from government service, the employment that
could be terminated no longer existed.

After due investigation however the new PNB management dismissed her from work for willful breach of trust and
withheld her fringe benefits, gratuity benefits, monetary value of her leave credits, rights and interests in the
provident fund and other benefits due her as of May 26, 1996. Was PNB correct?

It is correct in dismissing her for willful breach of trust but wrong in withholding her monetary benefits upon her
retirement on May 26, 1996.

While PNB began as a government corporation, it did not mean that its corporate being ceased and was
subsequently reestablished when it was privatized. It remained the same corporate entity before, during and after
the change over with no break in its life as a corporation. Consequently the offenses committed by Lucy against the
bank before its privatization continued to be offenses against the bank after privatization except that the Labor Code
already governs its disciplinary action since it was already a private corporation when it looked into Lucy’s offenses.

As to the existence of a just cause, it is clear that Lucy admitted committing the acts or omissions constituting the
offenses. Her uncorroborated defense is unsatisfactory, revealing a mind that was willing to disregard bank rules and
regulations when other branch officers concurred. That the bank did not suffer any loss is of no moment. The focal
point is that she betrayed the trust of the bank in her fidelity to its interest and rules. So the PNB rightfully separated
her from work for willful breach of trust under the Labor Code.


But the PNB is wrong in withholding the monetary benefits due Lucy as of May 26, 1996 when she was automatically
retired. Although the transformation of the PNB from a government owned corporation to a private one did not
result in a break in its life as a juridical person, the same cannot be said of its employees. Section 27 of Proclamation
50 provided for the automatic termination of employer‐employee relationship upon privatization of government
owned and controlled corporation. It also provides that such privatization cannot deprive government employees
involved, of their accrued benefits or compensation. Here when PNB was privatized Lucy’s employment with it as a
government owned and controlled corporation ceased. In fact the PNB already computed the benefits due her and
readied their payment after clearing her of any accountability. In the eyes of the law her record as employee of PNB
was untarnished at the time of her separation from it when it was still government owned and controlled. Hence all
those benefits already accrued to her on the date of her termination even if PNB as privatized immediately rehired
her (Ang vs. PNB, G.R. 178762, June 16, 2010).


Perfected

Like any contract a compromise settlement of a case is perfected upon the meeting of the minds between the
parties pertaining to the subject matter and the cause or consideration for the settlement. This is illustrated in this
case of Hilda.

Sometime in January 1993 Hilda engaged the services of Pete, a geodetic engineer, to conduct a relocation,
consolidation and subdivision survey of her properties as well as the properties her sister. In the course of
conducting his work, Pete asked Hilda and her husband to sign a document which was supposedly needed to
facilitate the consolidation‐subdivision and issuance of separate certificates of title over the properties.

After completing his work, Pete was paid P4,050.00 for his services. But he failed to return the certificates of title of
the said properties for more than one year despite repeated demands to return them. Later on, Hilda and her
husband learned that Pete had already sold their lot when a truck loaded with construction materials came to their
land. They further discovered that Pete made it appear that she had sold the lot to him for P80,000 and had her
certificates of title cancelled and transferred to him using the document that he caused her and her husband to sign.

When confronted, Pete told Hilda that he had already sold the lot, He then tried to convince Hilda to accept
P400,000, later increased to P500,000 as purchase price of the lot. On May 3, 1994, thinking that she could no longer
recover her property, Hilda agreed to accept the P500,000 from Pete but only as partial payment because the lot had
a fair market value of P1,338,000. Hilda was made to sign an acknowledgment receipt and other documents where it
was made to appear that she received the full and final payment for the lot.

Hilda then asked for the payment of the fair market value of her property but to no avail. So the dispute was
referred to the Punong Barangay and the Lupong Tagapaymaya. During the conciliation proceedings on June 8, 1994,
the parties agreed that Pete will pay an additional amount of P75,000 to the initial P500,000 he already paid to
Hilda. But Pete had P70,000 only so he gave the said amount to Hilda who acknowledge receipt of the same as
attested by the Lupon Chairman.

The next day, Pete tendered the remaining P5,000 to Hilda to compete the amicable settlement. But Hilda refused to
accept saying that P5,000 was not enough. She insisted that the case be elevated to the court. After a certification to
file action was issued by the Lupon, Hilda filed a complaint in the Municipal Trial Court (MTC) insisting on the non‐
perfection of the amicable settlement since there was allegedly no meeting of the minds yet between them on the
subject matter and the cause thereof. In answer, Pete asked for the dismissal of the complaint considering that he
had already been released from any obligation and that what remains to be done is merely the completion of the
amicable settlement between them.

The MTC granted Pete’s motion and thus dismissed Hilda’s complaint. Was the MTC correct?

Yes. Admittedly, both parties agreed during the barangay conciliation proceedings for Pete to pay and additional
sum of P75,000 (which was the object or subject matter of the amicable settlement) to the initial P500,000 Pete had
earlier given to Hilda as purchase price of the lot in order to put an end to their dispute (which was the cause or
reason of the settlement). Hilda expressly acknowledged that Pete’s offer to pay additional P75,000 was made in
order for her to desist from pursuing her case against him. By reason of her unconditional acceptance of the offer
and the P70,000 initially tendered to her, Hilda had already effectively waived whatever claims she might have
against Pete regarding said lot.


Thus there was already a meeting of the minds between them and a compromise agreement or contract has been
perfected where they agreed to avoid litigation or put an end to one already commenced, by making reciprocal
concessions. A compromise is a form of amicable settlement that is not only allowed but encouraged in civil cases
(Harold vs. Aliba, G.R. 130864, October 2, 2007).


Unfair and unjust

Some unfair and unjust acts and omissions of government only come to light when public interest is aroused. One is
the case of the famous Arlegui property decided way back in October 2007 which is now very much back in the news
because it is one of the properties being considered as residence of the incoming President.

The original owner of said property containing an area of 4,924 square meters situated at 1440 Arlegui St. San
Miguel, Manila, near Malacanang was Tarcila Laperal Mendoza married to Perfecto Mendoza as shown in Transfer
Certificate of Title (TCT) No. 118527. On this lot now stands the Presidential Guest House which is undergoing
renovation for possible home of incoming President Noynoy.

How the property was acquired by the government highlights one of the many excesses and abuses committed
during the Marcos Martial Law regime that remains unredressed up to now allegedly because of adherence to “due
process of law”.

The evidence adduced during the hearing of the case filed in 1999 by Mendoza after the government has been
declared in default for repeated failure to answer her complaint, adequately shows that: (1) since time immemorial,
Mendoza and her predecessors‐in‐interest had been in peaceful and adverse possession of the property and the
owner’s duplicate of the title; (2) such possession continued until the first week of July 1975 when a group of armed
men representing themselves as members of the Presidential Security Group of the then President Marcos forcible
entered the property and ordered Mendoza to turn over to them her copy of the TCT and compelled her and
members of her household to vacate the same; (3) thus, out of fear for their lives Mendoza handed over the TCT and
vacated the property; (4) thereafter a fictitious Deed of Sale purportedly executed although never actually signed by
the spouses Mendoza was drawn up and used as basis for the cancellation of their TCT and the issuance of a new
TCT 118911 in the name of the Republic.

While the lower court decided in favor of Mendoza on August 27, 2003, the case still reached the Supreme Court
(SC) because the Republic ironically invokes the deprivation of due process. The SC however said that no such
deprivation occurred. The court explained that being deprived of a hearing, does not mean that the right to due
process had been violated not only because the “handling solicitor squandered the Republic’s right to be heard”, but
more importantly because “the law itself imposes such deprivation of the right to participate as a form of penalty
against one unwilling without justification to join issue upon the allegations tendered by the plaintiff” (Mendoza).

The SC also ruled that the evidence adduced in the lower court adequately supports a conclusion that the Office of
the President during Marcos time wrested possession of the property in question and somehow secured a certificate
of title over it without a deed of conveyance having been executed. Accordingly, the SC said that granting Mendoza’s
basic plea for recovery of the Arlegui property which was legally hers all along, and the reinstatement of her
cancelled certificate of title are legally correct as they are morally right.

The SC only found to be erroneous the monetary award of P1.624 billion particularly the P500,000 monthly rental
from 1975. The SC said that since the property had an assessed value of P2.3 million only as Mendoza herself
declared; that when martial law regime took over it has no new imposing structure; and that it had minimal rental
during the relatively long martial law years, given the very restrictive entry and egress conditions at the vicinity at
that time and even after, an award of P20,000 a month for the use and occupancy of the property is reasonable and
may be granted. So the SC ordered the Republic to pay Mendoza P20,000 a month beginning 1975 until it vacates

the same and the possession thereof restored to Mendoza plus interest of 6% per annum on the total amount due
upon the finality of the decision until fully paid (Republic vs. Hidalgo etc, et.al. G.R. 161657, October 4, 2007).

Mendoza’s case is not an isolated one. Another lady, Lourdes Paez Villa was deprived of her land with an area of
3,720 square meters way back in 1972 when the government took it away from her for the construction of the
Marikina‐Infanta road without instituting expropriation proceedings. After more than 30 years of claiming just
compensation, the Republic through the DPWH finally agreed to compensate her by paying the assessed value of the
land and rent with interest until fully paid. This was evidenced by a Deed of Absolute sale dated December 20, 2001.
Up to now however, 38 years later, DPWH has not yet fully paid the value of the land much less any rental due as
stipulated in the Deed giving all sorts of flimsy and shallow excuses. It is hoped that under the new administration,
this unfair and unreasonable acts and omissions will be finally corrected and justice rendered with dispatch to our
hapless citizens like Mendoza and Villa. The delays in giving them justice are circumstances where corruption thrives
best.


Damage without injury

Injury is the legal invasion of a legal right while damage is the loss, hurt or harm which results from injury. There can
be damage without injury in those instances where the loss or harm is not the result of a violation of a legal duty.
This is illustrated in this case of Carlo.

Carlo was a reputable businessman engaged in business activities that requires travelling both here and abroad. He
was a seasoned traveler visiting places in the US Europe and Asia at least seven times a year. Sometime in
September 1984, he was issued a Visa card by one of the leading commercial banks in the country (EBC) which could
be used for both peso and dollar transactions within and outside the Philippines. The card has a credit limit of
P20,000, while in dollar transactions, he was required to maintain a dollar deposit of $3,000 and the balance of said
deposit shall be his credit limit. It also provided for automatic suspension of credit privileges in case he exceeds his
credit limit. And in case of suspension, it can be reinstated or altogether terminated upon option of the issuer (EBC).

From August to September 1985, Carlo made credit purchases in Japan and HK amounting to more than $14,000
while having a deposit of $3,689 thus exceeding his credit limit. These purchases were accommodated by EBC on the
condition that the amount would be covered in a few days. But Carlo failed to make good on his commitment; he
also failed to make a deposit on the due date of his purchase. As a consequence, his card privileges for dollar
transactions were suspended. In January 1986 he made a deposit of $14,501.89 in his dollar account to cover his
purchases but it was not sufficient to maintain the required minimum dollar deposit of $3,000 as it only had a
balance of $2,704.94 after satisfaction of his outstanding accounts.

In April 1986, Carlo went to HK for business and pleasure trip together with some reputable business friends and
associates. A day before leaving, he made a deposit of $14,000 in his dollar account but did not bother to request
EBC for the reinstatement of his credit card privileges for dollar transactions, thus the same remained suspended.

On April 30, 1986, Carlo went to the Gucci Department Store in HK located at the basement of Peninsula Hotel
accompanied by his friend Danny. There he purchased several Gucci items costing HK$4,030 which was equivalent to
US$523. Instead of paying the said items in cash he used his Visa card to effect payment thereof on credit. But after
presenting his card, the saleslady informed him in the presence of his friend Danny and other shoppers of different
nationalities that his card was blacklisted and simply did not honor it, even threatening to cut it in several pieces.
Deeply embarrassed and humiliated and to avoid further indignities Carlo paid cash for the goods he bought.

But upon his return to the Philippines he filed a complaint before the Regional Trial Court(RTC) for damages against
EBC claiming that he suffered much torment on account of EBC’s wrongful act of blacklisting/suspending his Visa
card while at the Gucci store.

After trial and despite EBC’s defense that Carlo’s card was suspended and remained as such because he failed to
settle his previous purchases on time and he failed to maintain the required minimum balance, The RTC ruled in
favor of Carlo and awarded him actual damages of $150,000, moral damages of P200,000, exemplary damage of
P100,000 and P100,000 attorney’s fees.

On appeal to the Court of Appeals (CA), the latter affirmed the RTC decision but only as to the award of moral
damages which was reduced to P100,000. The CA justified the award on its assessment that EBC was negligent in not
informing Carlo that his credit card was already suspended before he left for HK ratiocinating that its right to
automatically suspend had been indiscriminately used against respondent. Was the CA correct?


No. In breach of contract, as here, moral damages are recoverable only if the breach is wanton reckless, malicious, or
in bad faith, oppressive or abusive. Given the facts of this case with the express provision on automatic suspension
under the Credit Card Agreement, there is simply no basis for holding EBC negligent for not notifying Carlo of the
suspended status of his card. It may be so that Carlo made a deposit of US$14,000 to his dollar account before he
left for HK. But as issuer of the card, EBC has the option to decide whether to reinstate or altogether terminate a
credit card previously suspended.

Even on the aspect of negligence therefore, EBC could not be held liable for moral damages. Unquestionably Carlo
suffered damages as a result of the dishonor of his card. But in order that he can maintain an action for such injuries,
he must establish that they resulted from a breach of duty that EBC owed to him which is the proximate cause. In
this case, there was no violation of a legal duty by EBC. So Carlo alone must bear the injury he suffered because the
law affords no remedy for damages resulting from an act which does not amount to a legal wrong (Equitable Banking
Corp. vs. Calderon, G.R. 156168, December 14, 2004).


Doubtful credibility

To be believed, testimonial evidence should come only from the mouth of a credible witness. If the credibility of a
lone witness is under a heavy cloud of doubt, the accused must be acquitted. This rule is illustrated in this case of
Simon.

Simon together with Doming were charged with drug pushing for selling and delivering 108.40 and 105.84 grams of
shabu in consideration of P2,000 on or about May 11, 1998 in Navotas Metro Manila. The charge was an offshoot of
an alleged buy‐bust operation following a tip from an informant conducted by the Navotas Police team with PO3
Alan acting as poseur‐buyer, the confidential informant, and several police operatives as back‐up.

According to PO3 Alan who was the lone prosecution witness, they proceeded to a house in the target place at about
11:15 in the evening where Doming answered the knocking at the door. Thereupon the confidential informant
introduced him to Doming and then and there he expressed his desire to buy shabu. Doming replied that he did not
have enough supply of shabu but marijuana was available. When he insisted on buying shabu, Doming allegedly told
him that someone would be delivering shabu.

PO3 Alan continued that after waiting for a few minutes, a man, who turned out to be Simon, arrived. Following the
usual introduction Alan said that Simon led him to his motorcycle then took out a bag containing two plastic sachets
of shabu while at the same time asking for payment. Alan said he examined the contents then gave Simon four P500
marked bills placed in between boodles or fake money. Thereafter he identified himself as a police officer and
arrested Simon. On signal, the back‐up officers joined the scene and frisked Simon and Doming. Simon was found in
possession of a 38 paltik revolver, buy bust money and more shabu while Doming had marijuana and shabu. Alan
further said that the seized items were then sent to a forensic chemist for laboratory examination and were found
positive for shabu and marijuana per Physical Science No. D‐411‐98.

During the trial, Alan also identified Simon and Doming, the marked money used and the shabu confiscated from
them. With regards to the boodles or fake money where he placed the marked money in between, Alan explained
that they are no longer available as they were confiscated by another policeman when he himself was arrested for
indulging in a pot session in violation of Section 27 of the Dangerous Drugs Act.

For their defense both Simon and Doming denied that there was a buy bust operation and that the charges were just
fabricated against them. They said that policemen led by PO3 Alan just barged into the house of Doming and pointed
the guns at the people inside including Simon who was visiting Doming at the time. Then they were told to lie face
down and stripped of their belongings. The policemen also took the motorcycles of Simon and Doming and brought
them to the headquarters and then demanded payment for their release. But only the members of Doming’s
household were released as both Doming and Simon were further detained. When they could not pay the amount
demanded, charges were filed against them.

Simon further said that PO3 Alan had been a drug user and in fact had already been dismissed from the service.
Indeed, Simon said that when they were in the headquarters he saw PO3 Alan and two others sniffing shabu.

After trial however, the RTC gave full credence to the testimony of PO3 Alan and convicted Simon and Doming of the
crime charged. Was the RTC correct?

No. PO3 Alan’s involvement as a police officer in illegal drug activities makes him a polluted source and renders his
testimony against Simon and Doming suspect at best. It is like a pot calling the kettle black. Given his service record,
PO3 Alan can hardly qualify as a witness worthy of full faith and credit under the limited confines of this case. It must

not be overlooked that PO3 Alan is a rogue cop, having been arrested for indulging in a pot session per his own
admission, then eventually charged and dismissed from the police service. It would thus appear that PO3 Alan had
been a user. His arrest for joining a pot session only confirms this undesirable habit. His involvement in drugs and his
alleged attempt to extort money from Simon for the latter’s freedom has put his credibility under a heavy cloud.

While the rule is that prosecutions involving illegal drugs depend largely on the credibility of the police buy‐bust
operators and that the trial court’s finding on the credibility of a police‐witness deserves respect, acquittal or the
least liability is in order when there are circumstances that would support a reasonable doubt in favor of the accused
like in this case where PO3 Alan’s credibility is under a heavy cloud because of his involvement in illegal drugs. The
constitutional presumption of innocence requires courts to take a more casual consideration of every circumstance
or doubt proving the innocence of an accused (People vs. Sitco and Bagtas, G.R. 178202, May 14, 2010).


Strained relations

The normal consequences of illegal dismissal are reinstatement without loss of seniority rights and award of back‐
wages from the time the salary is withheld up to actual reinstatement. But can separation pay be also awarded aside
from back‐wages? This is the issue raised once more in this case of Mang Pepe.

In 1990 Mang Pepe was hired as carpenter by Arnie to work in his construction company (GAB) with a daily wage of
P220. In 1999, Arnie stopped giving work assignments to Mang Pepe allegedly because GAB no longer had any
construction projects available. Believing that he was already a regular employee and that his services were
terminated without just cause, Mang Pepe filed a complaint for illegal dismissal against GAB and Arnie. For its
defense, GAB and Arnie contended that Mang Pepe was a project employee and so his employment was validly
terminated because of unavailability of construction projects.

On January 10, 2001, the Labor Arbiter (LA) ruled in favor of Mang Pepe finding that he was a regular employee who
was dismissed without cause. So the LA ordered his immediate reinstatement without loss of seniority rights and
other privileges, with payment of full back‐wages.

GAB and Arnie appealed this ruling to the NLRC. But pending their appeal and in compliance with the LA’s decision,
they advised Mang Pepe to report back to work in the construction site within 10 days. On May 15, 2001, Mang Pepe
manifested to the LA that actual animosities existed between him and Arnie and there had been threats to his life
and his family’s safety. Hence he just asked that his separation pay be paid instead of reinstatement.

Meanwhile the NLRC upheld the LA decision in favor of Mang Pepe on April 22, 2002. This ruling was affirmed by the
Court of Appeals (CA) and attained finality on September 15, 2004.

Controversy again arose when GAB and Arnie found as exorbitant the recomputed amount due to Mang Pepe then
already amounting to P562,804.69 subject of a writ of execution issued by the LA. They asked the NLRC to reconsider
this re‐computation contending that since Pepe refused to get back to work, the re‐computation of the wages and
benefits due him should not be beyond May 15, 2001 the date when he manifested his refusal to be reinstated.

On March 9, 2006 the NLRC granted GAB and Arnie’s motion. It held that since Mang Pepe did not appeal the LA’s
decision granting him only reinstatement and back wages, not separation pay, and since he refused to go back to
work, he may recover back wages only up to May 20, 2001, the day he was supposed to return to the job site. Was
the NLRC correct?

No. The basis for the payment of back wages is different from the basis for the payment of separation pay. Back
wages represent compensation that should have been earned but were not collected because of the unjust
dismissal. Separation pay is granted where reinstatement is no longer advisable because of strained relation
between employer and employee. Separation pay may avail in lieu of reinstatement if reinstatement is no longer
practical or in the best interest of the parties. It may likewise be awarded if the employee decides not be reinstated.

Under the doctrine of strained relations, the award of separation pay is considered an acceptable alternative to
reinstatement when the latter option is no longer desirable or viable. Such payment liberates the employee from
what could be a highly oppressive work environment, in much the same way that it releases the employer from the
grossly unpalatable obligation of maintaining in its employ, a worker it could no longer trust.

In this case, actual animosity already existed between Arnie and Mang Pepe as a result of the filing of the illegal
dismissal case. Clearly then Mang Pepe is entitled to back wages and separation pay as his reinstatement has been

rendered impossible due to strained relations. He should thus be awarded back wages of P562,804.69 computed
from the time he was unjustly dismissed in February 1999 until June 30, 2005 when his reinstatement was rendered
impossible without fault on his part. On the other hand, Mang Pepe’s separation pay should be computed from the
time he was hired in 1990 until not only in 1999 when he was unjustly dismissed but until June 30, 2005 when his
reinstatement was rendered impossible which is the day when he is deemed to have been actually separated or a
total of 15 years. At one month pay for every year of service, he should receive P85,800 separation pay (Golden Ace
Builders and Azul vs. Talde, G.R. 187200, May 5, 2010).


Constructive possession

Is it necessary that a person be in physical possession of the firearms and ammunitions in order to be convicted of
the crime of illegal possession of firearms? This is one of the issues raised in this case of Fil.

Fil was a Filipino contract worker in Angola. On his way back to the Philippines last January 30, 1996 via Dubai, he
was detained by the Arab authorities in the Dubai airport because one Israel Jericho Pistol and Mini‐Uzi with 19 mm
bullets were found in his luggage. Since he was listed as a passenger of PAL flight from Dubai to Manila, the PAL
station manager in Dubai (Lino) was told by the Dubai Police that said firearms and ammunitions found in Fil’s
luggage were confiscated from him; and that Fil would be imprisoned in Dubai and would not be able to board the
plane unless the PAL Pilot in command (Captain Ed) would accept custody of Fil and of said firearms and
ammunitions.

So Lino approached the PAL Captain Ed and informed him of Fil’s case. Ed then agreed to take custody of the items
confiscated from Fil so that the latter could leave Dubai for Manila. Lino then got the items from the Arab police and
turned them over to Captain Ed who deposited them in the cockpit of the airplane in the presence of the Arab
police. Thereafter Fil was allowed to board the plane.

Upon arrival here, Max, a customs police who was informed that a PAL passenger will be arriving with firearms and
ammunitions met a crew member who introduced him to Fil. When asked by Max if he brought firearms and ammo
with him, Fil answered in the affirmative even adding that he bought them from Angola. Fil then signed the Customs
Declaration Form which contains the entry “2 pistol guns sent surrender to PAL”. Thereupon Max was led to the
cockpit by pilot Captain Ed who turned over to him the said firearms and ammo.

Max then brought Fil to the examination room where the luggage was examined and Fil investigated. During the
examination Fil admitted to special agent Pol that he bought the items from Angola but they were confiscated in
Dubai and turned over to the PAL pilot. After gathering other documents like the Arrival Endorsement Form and the
Customs Declaration Form and after verifying from the Firearms and Explosive Office in Camp Crame that Fil was not
a licensed holder of said items as well as from the Customs Bureau that the firearms were not legally purchased, Pol
endorsed Fil’s case to the Department of Justice State Prosecutor. Subsequently after preliminary investigation the
State prosecutor filed in the Regional Trial Court (RTC) an Information charging Fil with illegal possession of firearms
in violation of Section 1, PD 1866.

After trial, the RTC found Fil guilty of illegal possession of firearms and ammunitions and sentenced him to
imprisonment of 6 years and 1 day to 8 years and a fine of P80,000. On appeal, the Court of Appeals (CA) affirmed
the said decision.

Fil questioned said ruling. He argued that he could not have committed the crime imputed to him for he was never in
custody or possession of any firearm and ammunition when he arrived in the Philippines since the said items were in
the custody of the PAL pilot captain. Was Fil correct?

No. The said firearms and ammo were confiscated in Dubai from Fil who was detained by the Arab police and was
released only on the condition that he will bring the guns and ammo to the Philippines upon intercession of PAL
station manager Lino who got the items and turned them over to the PAL pilot captain. Moreover, the Customs
Declaration Form showed that Fil brought the guns and ammo with him upon arrival in the Philippines. The
preparation of said Form is a requirement for all arriving passengers in the international flight like Fil. It provides
details that only Fil could have possibly known or supplied. It was not elicited during the custodial investigation that

requires the assistance of a lawyer because Fil was not yet arrested when he filled it up and signed it. In fact he was
escorted by Max for investigation only after he signed the Form.

Consequently Fil was in constructive possession of the subject firearms and ammo. The kind of possession
punishable under PD 1866 is one where the accused possesses the firearms and ammo either physically or
constructively with intention to possess the same. In this case, the PAL pilot captain accepted custody of the items
and of Fil himself in order that Fil who was being detained in Dubai would be released. In other words, the PAL pilot
captain’s custody of said firearms and ammo was for and in behalf of Fil. Thus there was constructive possession. Fil
is therefore guilty as charged (Evangelista vs. People, G.R. 163267, May 5, 2010).


Appointment and removal

In our presidential system of government, the authority to appoint is one of the President’s foremost powers. It is
exercised either exclusively or with the consent of the Congressional Commission on Appointments (CA) or upon
recommendation of the Judicial and Bar Council (JBC).

The President has the power to appoint, with the consent of the CA, the following officials: (1) the heads of the
executive departments; (2) ambassadors; (3) other public ministers and consuls; (4) officers of the armed forces from
the rank of colonel or naval captain; and (5) other officers whose appointments are vested in him by the Constitution
(Section 16, Article VII); (6) the Chairman and Members of the Civil Service Commission (Article IX B Section 1 [2]); (7)
Chairman and Members of the Commission on Elections (Article IX C Section 1 [2]); (8) the Chairman and Members
of the Commission on Audit (Article IX D Section 1[2]); (9) the regular members of the Judicial and Bar Council
(Article 8 Section 8[2]).

On the other hand the President shall appoint only from a list of at least three nominees submitted by the JBC, the
members of the Supreme Court, the members of the Court of Appeals, judges of the lower courts (Article VIII,
Section 9) and the Ombudsman and his deputies (Article XI Section 9).

Hence, except for the above enumerated positions that require the consent of the CA or the recommendation of the
JBC, the authority to appoint “all other officers of the government whose appointments are not otherwise provided
by law and those whom he may be authorized by law to appoint” is lodged on the President alone. But Congress may
by law also vest the appointment of other officers lower in rank, in the courts or in the heads of departments,
agencies, commissions or boards (Article VII Section 16).

It is true that implicit in the power to appoint is the power to remove the person appointed. The power to fire may
really be implied from the power to hire. This is a basic and general rule applicable especially to the President as the
government’s chief executive. It is essential for a more effective control and for a more productive and efficient
performance of the functions of the head of the Executive Branch of the government. The President can achieve
more in running the affairs of the State if he has the power to pull out any member of his team who is not playing
well or who does not practice teamwork.

But like all general rules, there are exceptions. First of all, the President cannot remove his appointees to the
judiciary like the members of the Supreme Court, the Court of Appeals and the lower courts. Their terms are already
fixed by the Constitution; and they may be removed only by Congress through impeachment in case of members of
the SC and by the SC itself in case of members of the lower courts and their personnel who are under its
administrative supervision. This is to insure the independence and autonomy of the judiciary as a co‐equal branch of
government. Secondly the President has also no power to fire the members of the Constitutional Commissions and
the Ombudsman because their terms of office are also fixed by the Constitution and, like the members of the SC,
they may be removed from office only on impeachment for culpable violation of the constitution, treason, bribery,
graft and corruption, other high crimes or betrayal of public trust (Article XI Section 2).

Hence the President’s power of removal springing forth from his/her power of appointment mainly refers only to
officers in the Executive Department, Bureaus, Offices, Subdivisions, Instrumentalities and Agencies of the
government, including government owned and controlled corporations with original charters all of which are under
his/her control and supervision (Section 17, Article VII).

But since these positions are within the scope of the civil service (Section 2[1] Article IX B), the President’s power of
removal is also subject to some limitations. Section 2 (3) Article IX B of the Constitution says that “no officer or

employee of the civil service shall be removed or suspended except for causes provided by law” The causes for
removal depend on the kind of positions in the civil service.

Appointments in the civil service may be appointments to competitive positions which must be made according to
merit and fitness to be determined as far as practicable through competitive examination; or to non‐competitive
positions where merit and fitness are determined not by competitive examination since by their nature they are
“policy determining, primarily confidential or highly technical” (Section 2[2] Article IX B).

Competitive positions in the civil service may also be classified as career service under the Civil Service Code (P.D.
807) since appointments are based on merit and fitness determined by competitive examinations or mainly on
technical qualifications that assure appointees (1) security of tenure and (2) opportunity for advancement to higher
career positions.

Non‐competitive positions on the other hand are similar to the non‐career service under the Civil Service Code
where entrance is not based on tests for merit and fitness and where tenure is limited either: to a period specified
by law, or co‐terminus with that of the appointing authority, or at his pleasure, or to the duration of the project for
which the appointee is hired.

But whether in competitive or non‐competitive service, security of tenure is guaranteed in the sense that their right
to continue in the position held should not be impaired by any arbitrary action.

Removal or suspension of competitive‐ career civil servants shall be only for “causes provided by law” which means
that they are not only in accordance with the procedure provided by law but also for reasons which the law and
sound public policy recognize as sufficient for removal and “substantial in nature directly affecting the rights and
interests of the public” (De los Santos vs. Mallare, 87 Phil, 290).

With regards to officials and employees holding primarily confidential position, they continue in office only for so
long as confidence in them endures. Hence the termination of their official relation can be justified on the ground of
loss of confidence which strictly speaking does not involve removal but expiration of the term of office (Hernandez
vs. Villegas 14 SCRA, 544).

These are guidelines that may help the incoming Noynoy Administration when he takes over the helm and bring in a
new team. Of course these rules on removal presuppose previous legitimate appointments of officials clinging on to
the position. If there is something wrong with the appointments as when they may be considered “midnight”, then
the step to take is more of a revocation of the appointment rather than a removal from office.


Bare assertions

Even if contracts are obligatory whether oral or written, a party trying to seek their specific performance should
prove their existence and the terms thereof by preponderance of evidence. Bare assertions are not enough. This is
the rule applied in this case.

The case is about a parcel of land with an area of 1,007 square meters fronting the provincial highway (Lot 9)
originally belonging to Pastor who left it intestate in 1962 to his wife Vera, and children Rita, Lucy, Rod, Kiko and Mar
(heirs). The heirs were already occupying definite portions of said lot when Pastor died. The front portion along the
highway was occupied by the family ancestral home co‐owned by the heirs. Beside it, also fronting the highway is
Rod’s hut. Mar’s house on the other hand stood at the back of the ancestral home.

In 1968, the heirs leased the ground floor of the ancestral home together with a lot area of 300 square meters, to
Larry who immediately took possession thereof. In 1974, Rod, Kiko, Lucy and Rita sold to Larry their shares, interest
and participation on the ancestral home and the 300 square meters lot on which it stood. So by virtue of the deeds
of sale, Larry’s possession as lessee turned into co‐ownership with Mar and Vera who did not sell their shares in the
house and lot.

Also, on various dates in 1971, Rod, Kiko and Lucy sold their remaining shares in Lot 9 to Cely. Later on in 1983, Rita
likewise sold her share to Cely who thereby acquired a total 493 square meters of Lot 9.

On June 18, 1993, the Republic of the Philippines, through the Department of Public Works and Highways (DPWH)
expropriated the front portion of Lot 9 for the expansion of the Cebu South Road by filing a petition in Court. As
occupant of the expropriated portion, Cely thus moved to withdraw her corresponding share in the expropriation
payment. This was opposed by Mar and Vera and was yet unresolved.

On July 23, 1993, the heirs executed an affidavit confirming the Oral Partition/Settlement of Pastor’s estate where
they alleged: that after the death of Pastor in 1962 they orally made a partition and extra‐judicially declared
themselves as his heirs; that in the oral partition the portion to be allotted to Mar and Vera shall be fronting the
highway while the share of the rest shall be at the rear as shown by the survey attached to said affidavit.

On the basis of this affidavit of oral partition Mar filed an action for ejectment against Larry claiming ownership of
the lot occupied by Larry by virtue of the oral partition and praying that Larry pay him rentals and transfer to the rear
portion. But the court dismissed this action because the deeds of sale in favor of Larry clearly show that the portion
sold to him was fronting the highway.

Then on June 3, 1996 Vera and the heirs of Mar (who already died) filed an action against both Cely and Larry citing
the alleged oral partition agreed by the heirs even before the sale to both Larry and Cely to which the latter were
privy and therefore bound to comply. The other cause of action is directed solely at Cely who allegedly contracted
with them to assume payment of real estate taxes, survey Lot 9 in accordance with the oral partition, and obtain
titles for each portion.

The trial court, as subsequently affirmed by the Court of Appeals (CA) dismissed the complaint holding that the
deeds of sale in favor of Larry and Cely which are written documents, the validity of which were never questioned by
Vera and Mar, stands superior over the allegations of an oral agreement, the existence of which was not proven.
Were the RTC and the CA correct?


Yes. Vera and Mar’s heirs’ only piece of evidence to prove the alleged oral partition was the joint affidavit entitled
“Confirmation of Oral Partition/Settlement of Estate” executed by the heirs in 1993 to the effect that such an oral
partition has been agreed upon after Pastor’s death. They did not adequately explain why the affidavit was executed
only in 1993, several years after Larry and Cely took possession of the front portion of Lot 9. If there had been an
oral partition allotting the front portion to Vera and Mar, now represented by his heirs, they should have
immediately objected to Larry and Cely’s occupation. Instead they only asserted ownership over the front portion in
1993 (with the execution of the affidavit) when expropriation became imminent and later filed in court.

Moreover Vera and Mar’s heirs failed to show that they and other heirs of Pastor took possession of their allotted
shares as agreed upon in the alleged oral partition. Actual possession and exercise of dominion over definite portion
of the property in accordance with the alleged oral partition would have been its strong proof. In this case Vera and
Mar’s heirs failed to present any evidence that they took actual possession of their respective allotted shares. In fact
the evidence of the parties indicates that the actual occupants of said front portion are Cely and Larry. In fine Vera
and Mar’s heirs failed to prove their allegation of oral partition (Heirs of Pacres etc. et. al. vs. Heirs of Ygona etc et.
al, G.R. 174719, May 5, 2010).


Fair market value

“Fair market value” is a phrase used not only in ordinary business parlance but in law and jurisprudence where it has
already acquired a settled meaning. This case of the Public Estates Authority (PEA), now the Philippine Reclamation
Authority (PRA) gives us the meaning of said phrase.

The case involves a Compromise Agreement (CA) entered into by PEA with Gerry and the estate of Jessie
represented by Benny as their attorney‐in‐fact (second party) which settled the issue on the overlapping parcels of
land between PEA and the second party in the reclaimed area. The CA which has already been approved by the court
and has become the final judgment between the parties, provides among others: (1) that second party has the
option to purchase additional 7.6 hectares of PEA’s land within three years from the date the CA has been approved
by the court in a judgment that has become final; and (2) that the value of the land subject of the option shall be
based on the fair market value as determined by PEA on the date of the exercise of the option.

On January 26, 1999, second party informed PEA that they are exercising the option to purchase. No reply was heard
from PEA. So on June 6, 2002, second party moved that the trial court issue an order for the appointment of three
licensed real estate appraisers to determine the fair market value on the date of the exercise of the option, and for
the suspension of the three‐year period until the trial court’s approval of the appraisal report.

By letter of March 26, 2004 however, PEA set the terms and conditions for the second party’s exercise of the option
by: (1) specifying the parcels of land comprising the 7.6 hectares; (2) fixing the purchase price at P60,000 per square
meter or a total of P4.560 billion; and (3) imposing a period of 122 days within which to exercise the option and to
pay the purchase price in cash.

Second party did not heed PEA’s imposition of the 122‐day period to exercise the option and instead filed a
Supplemental Motion in the trial court asking for the implementation of the option to purchase it has exercised on
January 26, 1999, which was well within the three year period, by fixing the fair market value based on the actual
condition of said 7.6 hectares as well as the prevailing real estate market price on or about said date.

The trial court however denied the second party’s motion on January 11, 2005, holding among others that it is PEA
which has the exclusive right to determine the fair market value of the land that second party want to purchase
pursuant to the CA. Was the trial court correct?

No. The proper interpretation of the stipulation in the CA is that PEA is given the right to determine the price of the
subject land, provided it can substantiate that the same is the fair market value as of the date of the exercise of the
option. The term fair market value in the stipulation cannot be ignored without running afoul of the intent of the
parties. Since it is not disputed that second party exercised the option to purchase on January 26, 1999, the
valuation should thus be based on the fair market value of the property on said date.

Fair market value is the price at which a property may be sold by a seller who is not compelled to sell and bought by
the buyer who is not compelled to buy taking into consideration all uses to which the property is adapted and might,
in reason, be applied.

Given this yardstick, the proper valuation of the property should be arrived at through the market data approach,
which is based on the sales and listings of comparable property registered within the vicinity; and that the property
was classified as raw land because there were yet no houses and facilities like electricity, water and others at the
time of the exercise of the option.


PEA’s bad faith is abundantly clear. It did not respond to the second party’s notification of their intention to exercise
the stipulated option to purchase until after four years, or on March 26, 2004 when it surprised second party with an
exorbitant price for the property and gave them only 122 days within which to purchase the same. Undeniably it is
enfeebling the CA under the guise of enforcing it. This cannot be sanctioned (Public Estates Authority etc. vs. Estate
of Yujuico etc. G.R. 181847, May 5, 2010).


Presumption of lawfulness

This is a case about the rule on the presumption of regularity in the performance of official duties unless rebutted by
clear and convincing evidence to the contrary.

The case involved one motor vehicle and six motorcycles purchased by the Congressman of a district in Agusan del
Sur out of his CDF fund and turned over to the Municipality of Bunawan to help in the planning, monitoring and
coordination of the implementation of the waterworks projects located throughout the Province.

Pursuant to a resolution of the Bunawan Sangguniang Bayan dated May 17, 1995 (Res. 95‐27), Andy, the municipal
mayor executed a deed of transfer of said vehicles to the San Francisco Water District (SFWD) which was designated
to implement, control or supervise all the CDF funded waterworks projects, so that they could be used for the same
purpose for which they were purchased.

On July 27, 1995 however the Sangguniang Panlalawigan of the Province disapproved Res. 95‐27 of the Bunawan
Sangguniang Bayan and cancelled and declared null and void the deed of transfer executed pursuant thereto for
being in violation of the Local Government Code. This prompted the newly elected municipal mayor of Bunawan, to
demand from SFWD the return of the said vehicles. But SFWD refused.

So on May 13, 1996, a complaint was filed against then already ex‐Mayor Andy, Tino his vice mayor and four
Sangguniang Bayan members, Gene, Emil, Ruth and Ernie who passed Res. 95‐27 accusing them of violating Section
3(e) of the Anti‐Graft Law for causing undue injury to the Municipality. Also charged was the general manager of
SFWD.

On July 31, 2003, after due trial, the Sandiganbayan rendered a decision finding Andy, Tino and Emil guilty as
charged. The cases against Gene and Ruth were dropped on the ground of their demise while Ernie and the GM of
SFWD were acquitted on the ground of reasonable doubt. Was the Sandiganbayan correct?

No. The elements of the offense are: (1) that the accused are public officers or private persons charged in conspiracy
with them; (2) that said public officers committed the prohibited acts during the performance of their official duties
or in relation to their public positions; (3) that they caused undue injury to any party whether Government or private
party; (4) that such injury is caused by giving unwarranted benefits, advantage or preference to another; and (5) that
the public officers have acted with manifest partiality, evident bad faith or gross, inexcusable negligence.

In this case only the first element was present. All the other elements were not proven. The transfer of the vehicles
to SFWD was made in furtherance of the purpose for which the funds were released. The deed of transfer also
expressly provided that the said vehicles shall be used for the same purpose for which they were purchased.

Moreover the transfer was made to ensure the success of the implementation of the CDF funded waterworks
projects and not because SFWD was given any preference, unwarranted benefits or undue advantage.

Andy, Tino and Emil were not also motivated by bad faith when they transferred the motor vehicles to SFWD. They
have in their favor the presumption of regularity in the performance of official duties as mayor, vice mayor and
councilor respectively. This presumption of regularity may be rebutted by affirmative evidence of irregularity or
failure to perform a duty. In his case the presumption prevails because of lack of clear and convincing evidence to
the contrary. Every reasonable intendment of the law will be made in support of the presumption and in case of
doubt as to an officer’s act being lawful or unlawful, construction should be in favor of its lawfulness (Bustillo et. al.
vs. People, G.R. 160718, May 12, 2010).

Final even if erroneous

This is another case illustrating that a final decision can no longer be modified. This is the case of Lito who was hired
as technical salesman by a company engaged in the distribution of various chemicals from foreign suppliers (MTI).
After more than six years of employment, MTI terminated Lito’s services on July 15, 1997.

So Lito filed a case of illegal dismissal with the Labor Arbiter of the NLRC (LA) against MTI and its President and
General Manager Vic. On May 31, 1999, the LA rendered a decision finding Lito’s dismissal illegal and ordering MTI
and Vic to reinstate him to his former position or to other equivalent position and to pay his full back‐wages and
other benefits totaling P98,694.35. This decision was affirmed after it was elevated all the way up to the Supreme
Court. It became final on August 13, 2001 and was remanded to the LA for execution.

On August 28, 2001 the LA issued a writ of execution commanding the NLRC Sheriff to collect the amount due to Lito
already totaling P296,160.10. Regrettably, in a series of pleadings motions and appeals to the NLRC and the Court of
Appeals (CA), MTI and Vic have delayed the execution of the LA’s final decision.

When the LA again issued an alias writ of execution on March 11, 2003 commanding the Sheriff to collect the
recomputed amount of P251,927.12 due to Lito, the Sheriff garnished the account of MTI and Vic in a bank. Vic and
MTI again filed a motion for reconsideration questioning this garnishment alleging that only MTI was the employer
of Lito and Vic was only a nominal party. But the LA denied the motion for reconsideration on June 23, 2003 thereby
triggering another series of appeal to the NLRC and the CA.

On July 14, 2005, the CA issued another decision denying MTI and Vic’s petition for certiorari and upholding the
execution made by the Sherriff who levied the real property of Vic under TCT No. 59496. The CA subsequently
affirmed this decision on November 16, 2005 by denying Vic’s and MTI’s motion for reconsideration.

Once more Vic and MTI elevated the case before the SC. Vic argued that his property cannot be made liable for the
monetary award in favor of Lito because of a previous ruling of the SC that to hold president or director liable for
debts of the corporation and thus pierce the veil of corporate fiction, the bad faith or wrongdoing of the president or
director must be established clearly and convincingly. Was Vic and MTI correct?

No. Once a judgment becomes final and executory, the prevailing party should not be denied the fruits of his victory
by some subterfuge devised by the losing party. Final and executory judgments can neither be amended nor altered
except for correction of clerical errors, even if the purpose is to correct erroneous conclusions of fact or of law.

Everything considered what must be enforced through a writ of execution is the dispositive portion of the LA
decision dated May 31, 1999 as affirmed by the NLRC, the CA and the SC. Since the writ of execution issued by the LA
does not vary but is in fact completely consistent with the final decision in this case, the order of execution issued by
the LA is beyond challenge. It is no longer feasible to modify the final ruling in this case through the expediency of a
petition questioning the writ of execution. This late in the day, Vic is barred by final judgment from advancing the
argument that his real property cannot be made liable for the monetary award in favor of Lito. The final judgment in
this case may no longer be reviewed, or in any way modified, directly or indirectly, by a higher court, not even by the
Supreme Court (Marmosy Trading Inc. et.al vs. Court of Appeals et. al. G.R. 170515, May 6, 2010).


Ministerial

Can a writ of possession of a mortgaged property that has been foreclosed be denied because of questions on the
validity of the mortgage or its foreclosure and sale? This is the issue raised in this case of the brothers Tony and Jim.

Tony and Jim are owners of two parcels of land covered by TCT Nos. 79865 and 79866 located at San Francisco del
Monte QC which they mortgaged to a bank (PDB) to secure the various loans they obtained totaling P25 million.
Since they failed to pay their obligation on due date, PDB instituted an extrajudicial foreclosure sale of the lands
before a Notary Public. Notices of scheduled sale of said properties were posted at the main building of the Hall of
Justice in QC and published in a newspaper of general circulation in QC once a week for three consecutive weeks.

On the scheduled date of foreclosure PBD emerged as the highest bidder, so a Certificate of Sale was issued in its
favor and registered with the Register of Deeds on May 19, 1999. Since Tony and Jim failed to redeem the property
within the one year period, PDB filed a petition for a writ of possession before the Regional Trial Court (RTC) Branch
77.

In the meantime Jim and Tony also filed an action for annulment of the certificate of sale, Promissory Note and Deed
of Mortgage before RTC Branch 221 which issued a writ of preliminary injunction on June 14, 2000 restraining PDB
from consolidating title to the property and committing any act of disposition that would defeat the brothers’ right
of ownership.

On the other hand, after numerous incidents arising from PDB’s petition for writ of possession, and after the bank
was finally allowed to present its evidence ex‐parte, RTC Branch 77 finally issued an order dated January 19, 2009,
denying the writ of possession because of lack of proof that notices of foreclosure sale were duly posted, irregularity
in the conduct of sale by the Notary Public which should have been filed and conducted by the Ex‐Officio Sheriff of
the Executive Judge and lack of approval of the certificate of sale by said Judge.

PDB questioned the said ruling of RTC Br. 77. It contended that said court cannot cite as ground for denial of the writ
of possession, questions relating to the validity of the mortgage or its foreclosure. Was PDB correct?

Yes. Since Tony and Jim failed to redeem the property foreclosed within the reglementary period, entitlement to the
writ of possession becomes a matter of right and the issuance thereof is merely a ministerial function. The judge to
whom an application for writ of possession is filed need not look into the validity of the mortgage or the manner of
its foreclosure. Questions regarding the validity of a mortgage or its foreclosure as well as the sale of the property
covered by the mortgage cannot be raised as grounds to deny the writ of possession. Any such questions must be
determined in a subsequent proceeding. In fact Tony and Jim already commenced an action for the annulment of the
certificate of sale, promissory note and deed of mortgage. Until the foreclosure sale is annulled, the issuance of the
writ of possession is ministerial (Planters Development Bank vs. Ng, G.R. 187556, May 5, 2010).


Internet libel

In criminal actions especially for libel, the place where the crime is committed determines not only the venue of the
action but constitute an essential element of jurisdiction. Pursuant to Article 360 of the Revised Penal Code as
amended by R.A. 4363, venue in libel cases where the complainant is a private individual is limited only either to (1)
where the complainant actually resides at the time of the commission of the offense, or (2) where the alleged
defamatory article was printed and first published. In case the libel is committed in an internet website, can the
venue be at the place where it was first accessed by the complainant? This is the issue raised in this case.

The case involved 13 counts of libel filed under Article 355 in relation to Article 353 of the Revised Penal Code
against the officers and members of the board of trustees of a large group of disgruntled plan holders of the Pacific
Plans Inc. (accused) known as Parents Enabling Parents Coalition Inc. (PEPCI). The complaint was filed by Jessie John
Gimenez, the attorney‐in‐fact of Alfonso Yuchengco, Helen Y. Dee and the Malaysian Insurance Inc. The alleged
libelous materials appeared on an internet website maintained by PEPCI (pepcoalition) to provide a forum by which
the plan‐holders could seek redress for their pecuniary loss under their policies.

Gimenez alleged that upon accessing the websites in Makati from August 25 to October 2, 2005, he was appalled to
read 13 articles, maliciously and recklessly caused to be published by said accused containing highly derogatory
statements and false accusations relentlessly attacking the Yuchengco family and Malayan. So he filed complaints for
libel before the Makati City Prosecutor’s Office

After finding probable cause to indict the accused, the Makati City Prosecutor’s Office filed the 13 Informations
charging accused with libel before the Regional Trial Court (RTC) of Makati City. Initially the Informations were
quashed because they lacked allegations that the offended parties were residing in Makati City at the time of the
commission of the offense. Later on upon motion for reconsideration of the prosecution, the RTC issued an order
allowing the prosecution to amend the Informations. In the amended Informations subsequently filed, it was alleged
that the supposed libelous articles were posted and published in a website accessible in Makati City, which was
accessed by private complainants in said place.

The accused again moved to quash the Informations on the ground that prosecution erroneously laid the venue of
the case in the place where the offended party accessed the internet‐published article. So the accused contended
that the amended information still failed to vest jurisdiction upon the RTC of Makati City. Were they correct?

Yes. Republic Act 4363 amending Article 360 was enacted to prevent the indiscriminate or arbitrary laying of the
venue in libel cases in distant, isolated or far flung areas meant to accomplish nothing more than harass or
intimidate an accused. The disparity or unevenness of the situation becomes even more acute when the offended
party is a person of sufficient means or possesses influence, and is motivated by spite or the need of revenge.

If the circumstances as to where the libel was printed and first published are used by the offended party as basis for
the venue, the Information must allege with particularity where the defamatory article was printed and first
published as evidenced or supported by, for instance the address of their editorial or business offices in the case of
newspapers, magazines or serial publication. This pre‐condition becomes necessary in order to forestall any
inclination to harass.

But when it pertains to defamatory materials appearing on a website the same rule cannot be applied as there
would be no way of determining the situs of the printing and first publication. The offended parties’ first access to
the defamatory article on the accused website in Makati cannot be equated with “printing and first publication”, as
it would spawn the very ills that the amendment to Article 360 sought to discourage and prevent. It hardly requires

much imagination to see the chaos that would ensue in situations where the website’s author or writer, a blogger or
anyone who posts messages therein could be sued for libel anywhere in the Philippines that private complainant
may have allegedly accessed the offending website.

To hold that the Amended Information in this case sufficiently vested jurisdiction in the courts of Makati City simply
because the defamatory articles were accessed therein would open the floodgates to libel suits being filed in all
other locations where the pepcoalition website is likewise accessed or capable of being accessed (Bonifacio et. al vs.
RTC of Makati Br. 149 etc. G.R. 184800, May 5, 2010).

A LAW EACH DAY (Keeps Trouble Away) by Jose C. Sison

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